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4-1-2003 BC Law Magazine Spring/Summer 2003 Boston College Law School

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Recommended Citation Boston College Law School, "BC Law Magazine Spring/Summer 2003" (2003). Boston College Law School Magazine. Book 22. http://lawdigitalcommons.bc.edu/bclsm/22

This Magazine is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Magazine by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. ANT FIRMS Is the growth trend here to stay?

SPRING I SUMMER 2003 VOLUME 11 I NUMBER 2 Contents

DEPARTMENTS 2 In Limine 3 Behind the Columns 4 In Brief IO Gallery II Legal Currents IS SOVEREIGNTY THE ISSUE? Why America turns its back on international law ATONING FOR SLAVERY: Scholars ponder whether legal reparations are the answer ENDANGERED HABITATS: A housing law designed to help, hurts instead 26 Faculty SCHOLAR'S FORUM: Are we a nation of unpredictable adventurists? FEATURES PROFILE: Teacher of the Year Mark Brodin Getting a Firm Grip ACADEMIC VITAE Mergers, downsizings, and closings are 35 Esquire challenging the once-sacrosanct rules by which ALUMNI NEWS law firms have operated for generations. CLASS NOTES What's it all mean? By David Reich 47 Commencement 48 In Closing 20 A Legal Cross to Bear The clergy sexual misconduct scandal has opened the Church to unprecedented public scrutiny and cast a shadow on religious liberty. By Fred Bayles

On the Cover: Illustration by Michael Gibbs On the Back Cover: Graduate Monica Antezona

S PRI NG I SU MMER 2003 I Be LAW MAGAZ INE [ I N LIMINE] BC ILAW

SPR I NG I SUMMER 2003 What It Takes to Win VOLUME 11 NUMBER 2 Dean John H. Garvey

Magazine's awards reflect our community's memorable qualities Editor in Chief Vicki Sanders

ere's news we can all celebrate. BC Law Magazine became a Associate Editor championship publication this year, winning a regional silver Tiffany Winslow medal and a national bronze medal from CASE. The Council H Contributing Editors for Advancement and Support of Education is the primary Deborah J. Wakefield organization for communications, alumni relations, and development Jane Whitehead professionals in education. After besting sixty other entries to win the

District 1 silver in February, the magazine in April earned a coveted na­ Contributing Writers tional bronze from among fifty-two entries in the Special Interest Maga­ Fred Bayles zine category. The prizes are milestones: they are the first awards won by David S. Bernstein BC Law Magazine, and they arrive on the publication's tenth birthday. Michelle Bates Deakin The recognition is welcome for several reasons. Matt Frankel '05 First, it confirms that the 2001 redesign of the magazine imparts to Jeanette Johnston readers the vitality of BC Law and brings to life the people and concerns Jo Lown '03 that give the school its special personality. A chronicle of the travails of Michael O'Donnell '04 the mock trial competitions and an expedition into the historical niches of Ron Powers the rare book collection are but two journeys the magazine has taken David Reich readers on recently. Maura King Scully Second, it suggests that among like publications at other professional Jeri Zeder schools, BC Law Magazine excels at engaging its alumni. Many of you answered our reader's survey, and I was pleased to learn that you read the Intern magazine quite thoroughly and rely on it to stay informed about Sarah Khan alumni and campus activities. Others of you entered a dialogue with the Strategic Planning Committee when you responded to our alum­ Design Consultant ni survey seeking your perspectives on everything from the curricu­ Susan Callaghan lum to career services. Professor Judith McMorrow, the committee Design & Printing chair, said your input was invaluable, particularly because it showed Imperial Company a widely held belief in a balanced theoretical and practical education and indicated that our emphasis on ethics is appreciated in a workplace Photographers rife with conflicts of interest and other moral dilemmas. Tom Brown Third, it tells us that our intent to capture the interest of and inform Suzi Camarata the broad legal community is succeeding. Articles on whether human Kindra Clineff rights is a casualty of the war on terrorism and on how society is breeding Charles Gauthier a terrifying new generation of adolescent criminals are examples of the Justin Allardyce Knight important subjects explored in our pages. As the CASE judges said, "The Patrick O'Connor content is highly relevant and compelling." Dana Smith Which brings us to this issue. We offer intriguing theories about why law firms are experiencing a spate of closings, downsizings, and mergers Boston College Law School of Newton, Massachusens 02459-1163, in "Getting a Firm Grip," on page 14. We also profile teacher of the year publishes BC Law Magazine two times Mark Brodin, tell you about the $20,000 settlement won by a clinical a year: in January and June. BC Law student, and provide a glimpse into the life of alumnus Mark Perlberg, a Magazine is printed by Imperial Company in West Lebanon, NH. We welcome highly successful executive who once swore he'd rather be a litigator. readers' comments. Contact us by phone Come to think of it, the CASE honors are not really about this maga­ at 617-552-2873; by mail at Boston College Law School, Barat House, 885 zine; they're about this community and the people and ideas that occupy Centre Street, Newton, MA 02459-1163; it. Boston College Law School-winner takes all. or by email at [email protected]. Copy­ right © 2003, Boston College Law Vicki Sanders School. All publication rights reserved. Editor in Chief Opinions expressed in Be Law Magazine do not necessarily reflect the views of Boston College Law School or Boston College.

2 Be LAW M AG A Z IN E I SPRING I SUMMER 2003 [BEHIND THE COLUMNS ]

A Healthy Mix

Student organizations broaden the definition of diversity

by John Garvey

n the debate over affirmative action in higher education, one common argument in favor of allowing universities some leeway is that diversity contributes to the intellectual life of the school-it helps shape the issues we talk about and the positions we take. The role that student organizations play in this dynamic often

gets overlooked. Individual students, particularly activities concerned with abortion. Our new Society those who stand a bit outside the cultural norms, for Law, Life, and Religion joined Professor Tom may be shy about expressing their views in public Kohler and several pro-life organizations to sponsor conversation. A group of ten or twenty like-minded a conference about the (mostly malign) effects abor­ people is less bashful. tion has had on women. The event drew a crowd of Think about some of the social and intellectual several hundred largely like-minded people from issues that were salient in the course of this academic inside and outside the Law School. It also stimulat­ year. The war in Iraq was the most prominent. Among ed our Reproductive Choice Coalition to hand out the faculty, sentiment about an American invasion its own literature, and later to sponsor (with the ranged from reluctant acceptance to strong opposition. Women's Law Society) a lecture by Frances Kissling, Student opinion was more widely dispersed. Many president of Catholics for a Free Choice. favored the proactive approach taken by President Affirmative action is a third issue that has attract­ Bush, for humanitarian reasons or reasons of national ed attention this year. The Supreme Court heard security. (It's an odd inversion of the 1960's, when arguments in Grutter v. Bollinger, and that case has students outflanked faculty on the left.) Our recently been the subject of intense interest for us (see page formed Veterans Association was an important force in 48). It is, after all, a case about the role of race in law the public articulation of this position. school admissions. The Black Law Students Associa­ War and rumors of war have stimulated the gov­ tion, Latino Law Students Association, Asian Pacific ernment's interest in military recruiting. The armed American Law Students Association, and the Ameri­ services, as you know, adhere to a policy popularly can Constitution Society hosted speakers, events, and called "Don't ask, don't tell" in hiring gay and les­ a march on Washington, all in support of the Univer­ bian service men and women. This is inconsistent sity of Michigan's position that race matters. with the Law School's nondiscrimination policy. For Today there are thirty-three student organizations several years we have had a tug-of-war with the on campus, and new ones spring up at the rate of armed services over this issue. When the faculty two or three per year. Just look at their range of voted last fall (under considerable government pres­ interests and the causes they have championed over sure) to give military recruiters the the past year or so. The Boston Col­ same treatment as other employers in lege Law Review held a symposium our Career Services Office, the on clergy misconduct litigation (see Lambda Law Students Association page 20). Our BC Law Republicans and several other organizations led a invited Richard Egan, one-time am­ strong student protest. bassador to Ireland and Marine heli­ This year is the thirtieth anniver­ copter chief, to talk about America's sary of Roe v. Wade, and it has been concerns with terrorism. The Interna- the occasion for a variety of student (continued on page ~ 5)

SPRING I SUMMER 2003 I Be LAW MAGAZINE 3 [ IN BRIEF ]

CAMPUS NEWS & EVENTS OF NOTE

SPOTLIGHT of her advisor, Professor Dan waters," he explains. Congress Kanstroom, director of BC passed legislation creating the Law's Immigration and Asylum visa in 2000, but the Bureau of Project, Kane offered to help Citizenship and Immigration Immigration Quandary Barry apply for a new class of Services (BCIS) has not yet visa. The "U" visa is designed issued regulations, although it STUDENT COMES TO THE RESCUE to give security and legal status has given guidance on provid­ to victims of violent crime who ing interim relief for eligible he tragic case of Adama States from her native Guinea otherwise would be unwilling applicants. THawa Barry made head­ on a visitor's visa in April 2002, to appear as witnesses. As Kane assembled docu­ line news in February. and that she was now classed as "It was great that Alison mentation for the application, Barry, 32, was nine months an illegal immigrant. was willing to take it on," says her familiarity with Barry's pregnant when she was shot in Media reports of Barry's Kanstroom, who was confident native land and culture helped the stomach by a gunman on the plight galvanized Alison Kane of Kane's experience and abili­ forge a connection with the Orange Line of Boston's subway '03. "When I read about the ties after supervising her work family. Kane speaks some system. Her baby son was deliv­ case, I really wanted to work on the Immigration and Asy­ Pulaar, Barry's mother tongue, ered but lived only hours. To on it," says Kane, who has a lum Project for over a year. He and Kane's husband, freelance devastating injury and bereave­ passion for immigration and was nevertheless concerned journalist Josh Johnson, had ment was added the threat of asylum law and a strong con­ about the "complexity and the visited Barry's village while in deportation when the subse­ nection to Guinea, where she amount of work that might be the Peace Corps. quent investigation revealed that volunteered in the Peace Corps involved." Applying for a "U" A crucial element in the visa Barry had entered the United for two years. With the support is sailing into " uncharted process, says Kane, is the testi­ mony of law enforcement offi­ cials, who must declare that the applicant is essential to an investigation. Kane secured the support of the detectives work­ ing on Barry's case and obtained affidavits from Barry, her perinatal social worker, her husband, and cousin. After reviewing all the papers with Kanstroom, Kane submitted the application to the Boston office of BCIS in February. If Barry is granted interim relief, once the visa comes into effect, she and her husband will be granted residency and employ­ ment authorization for three years, after which they can apply for Green Cards. "You can never guarantee anything in immigration law," warns Kanstroom, but he praises Kane for an " out­ standing job," and is cautious­ ly optimistic about the out­ come. Kane sums up her work on the case as "the culmina­ tion of everything I've done in my life, and everything that "When I read about the case, I really wanted to work on it," says Alison Kane '03, of her efforts to obtain legal status interests me." for an immigrant woman shot in a Boston subway. -Jane Whitehead

4 Be LAW MAGAZINE I SPRI NG I SU MMER 2003 [ I N BRIEF]

Founder's Medals Bestowed Papers, Presto!

A DAY OF BEGINNING AND HONORING ELECTRONIC JOURNAL LAUNCHED C Law celebrated the Bgraduation of its seventy­ C Law joined the van­ first class May 23 with a Bguard of premier law commencement address by US schools nationwide by Supreme Court Associate Justice launching the first issue of a Stephen Breyer (see page 47) . new online Law School In addition to honoring the Research Paper Series in Febru­ graduates, the Law School tra­ ary. The electronic journal is an ditionally uses the occasion to "unparalleled vehicle to discuss acknowledge people who have ideas and interact with scholars provided outstanding service to worldwide," says the project's the legal profession or to the initiator and editor Lawrence Law School and its constituen­ Cunningham. cies. Breyer and Darald Libby The series is published by the , 5 5 and his wife, Juliet, were so Legal Scholarship Network honored this year with the Stephen Breyer Darald and Juliet libby (LSN), a division of the Social Founder's Medal, the highest mitment to serving the public tinually touched by the con­ Science Research Network award conferred by BC Law. interest." stant thought and attention (SSRN), an internet forum for "Justice Breyer is one of the The recognition of the Lib­ they give to the Law School and scholars of management, most important figures in con­ bys was a tribute to their gift of its affairs," Garvey said. "They accountancy, and law. Free to temporary American law," said BC Law's first endowed chair, are wonderful people. Their subscribers, the journal includes Dean John Garvey, "a man of in honor of Father Michael G. best gift has been the opportu­ completed articles already extraordinary intellect, great Pierce, S.]., and their support of nity to get to know them." accepted by traditional academ­ integrity, and a lifelong com- faculty scholarship. "I am con- -Jane Whitehead ic publications and "working papers," which are offered for comment and critique. Papers PILF Efforts Pay Off can be downloaded from LSN at http://www.ssrn.com. The SSRN reaches some LAW SCHOOL FUND OFFERS MATCHING DOLLARS 35,000 subscribers in seventy countries. As editor of the BC t's been a banner year for alumni and friends. Freda vice," Garvey said. "Past and Law series, Cunningham solicits I the Public Interest Law Fishman, associate director of present students have raised the papers from colleagues and Foundation (PILF). The career services for public inter­ bar high." posts them online in monthly Law School Fund will now est programs, said that it is A case in point is the annual issues with an email notification match dollar for dollar money particularly gratifying that PILF auction, which this year to subscribers. "Everyone's very raised by the student-run orga­ gifts from alumni can be used exceeded its $25,000 goal by excited about it," says Cunning­ nization, and in April the group in this way. "It's part of a his­ raising $35,000. Hundreds of ham. "Students have an awe­ broke its annual auction record toric practice that alumni of people converged on the fes­ some, searchable vehicle, and it by $10,000. BC Law continue to support tively decorated Snack Bar in facilitates access to ideas in In announcing the matching the public service works of Stuart Hall to join in the silent, every corner of the world." policy, Dean John Garvey said current students," she said. blind, and live auctions held -Jane Whitehead that "encouraging and support­ Forty-five additional students throughout the afternoon. The ing public service is a core value received summer stipends live auction kicked off with of Boston College Law School, through the Law School Fund Garvey placing Dean-for-a-Day Update your and it is entirely appropriate initiative. privileges up for bid. He information, that the generosity of alumni "By their diligence in raising encouraged the audience with contact your should fund the work of stu­ money on behalf of PILF, and jokes, and the item sold for classmates, dents on behalf of the public in operating the summer $140-shortly after he remind­ keep in touch. Register at interest." stipend program, our students ed bidders of the chance to "get www.bc.edulfriendslalumni {community to get your The Law School Fund is the have contributed greatly to BC your hands on the Law Be email address forwarded school's annual fund, support­ Law's reputation as a place that School Fund." for life. ed by unrestricted gifts from honors and supports public ser- -Sarah Khan

SPR ING I SUMME R 2003 I Be LAW MAGAZINE 5 [ I N BRIEF]

[ HAPPENINGS ] Solomon Progress Report

STARR BRIGHT-Judge Ken­ TASK FORCE LABORS ON neth Starr dis­ cusses his book, he Law School's Task responses to the government's promoting events that stimulate First Among T Force on Nondiscrimina­ imposition of the Solomon regu­ debate and counteract some Equals: The tion and Military Recruit­ lations. Co-chaired by Professor effects of the suspension of the Supreme Court in ing Policies has faced a host of Kent Greenfield and Dan Roth nondiscrimination policy. The American Ufe, an new challenges since the BC Law '04, the PRC's primary work PAC has brought a number of insider's accou nt administration suspended the has been conducted by members speakers to campus, including Kenneth Starr of the Court. school's practice of limiting mili­ of a student-initiated seminar an Arabic linguist discharged DEATH ROW-Professor Paul tary recruitment on campus last dedicated to researching possi­ from the army for being gay, Marcus of the William and September. The decision was the ble legal challenges. Their sixty­ and has organized events to con­ Mary School of Law presents school's response to the federal page brief was recently circulat­ nect gay students to lawyers in " Death Pena lty Prosecutions: government's threat to cut off ed among the faculty. the Greater Boston area. Experience of Virginia Jurors," funding for breach of the According to the National Minuskin says that the Task focusing on his students' Solomon Amendment regula­ Outreach Committee (NOC), Force's efforts are still works­ research projects. tions, which require universities Yale Law might beat BC to the in-progress, but that the com­ LAMBDA AWARDS-Professor receiving federal funds to allow punch on the legal challenge mittees have provided BC Law Alan Minuskin is honored military recruiters full access to front. The NOC has been track­ with options for challenging the guest and keynote speaker at students and school facilities. ing activities at law schools, like law, links to other schools, and t he Lambda Law Students Under its chairman Professor Yale, where nondiscrimination programs that keep the student Association alumni dinner in Alan Minuskin, the Task Force policies have run head-on into body involved. The efforts of April. The gay and lesbian has created three subcommittees federal law. The NOC networks the Task Force "countermand association also recognizes bound by a common goal: to ful­ with other similarly situated the feelings of intolerance in the several 3Ls and non-Lambda ly reinstate the nondiscrimina­ schools regarding policy recom­ community that occur when we st udents. tion policy. mendations, events, and possi­ impair our antidiscrimination ROE V. WADE REDUX- The The Policy and Remedies ble challenges to the law. policy that has been in place for La w School hosts a national Committee (PRC) has been The Programs and Ameliora­ twenty years," he says. symposium charting the crafting legal and policy tion Committee (PAC) has been - Matt Frankel '05 impact of legalized abortion. "A Thirty-Year Reflection" is sponsored by the Women's Crisis in Catholic Culture Fund of Americans United for Life, Feminists for Life, and DEBATING THE CHURCH SCHISM Women Affirming Life. BC Law's Reproductive Choice ir Thomas More, patron tique and very passionate Coalition protests the forum's Ssaint of lawyers and states­ defense" of the bishops' hand­ pro-life bias. men, was no stranger to ling of the crisis, a division of convulsions in the Catholic opinion that "reflects what's BRIEF TRIUMPHS-The Braxton Church, being himself a victim going on in the wider Catholic Craven Constitutional Law of King Henry VIII's schism community. " Moot Court Team w ins Best from the Church of Rome. So it Brief at the Craven Competi­ Donohue took from the tion national finals and places seems appropriate that the BC debate "a recognition that second overall. The Jessup Law society that bears his name within the Church, among very Moot Court Team takes Best set itself the task of examining devout Catholics, there's a dis­ Brief in the New England the philosophical dimensions of agreement about how best to Regional sem i-f inals. the clergy sexual abuse crisis go forward." The focus should currently besetting the Church. not be on blaming, he said, but JUSTICE ON SHOW-"Long Joseph Donohue '03, president rather on "how we can get Road to Justice: the African emeritus of the St. Thomas More Sir Thomas More, lawyer and saint, back to our traditional values." American Experience in the Society, conceived of the sympo­ depicted by Hans Holbein. Enman added: "Everyone Massachusetts Courts," a mul­ sium, "Is There a Crisis in Catholic papers ranging from "Sex, Lies, walked away with an under­ timedia t raveling exhibit dra­ as a theological coun­ and Freud" to "Chastity and matizing the struggle of Culture?", standing of how deep the African Americans for racial terpoint to a Law Review sympo­ Courage." problems are and how difficult justice, is on view in the Law sium on the legal ramifications of BC Law chaplain Fred it's going to be to work out a Li brary t hrough October 10. the scandal (see article, page 20). Enman, said the discussion solution." Speakers debated the issue in included a "very passionate cri- - Jane Whitehead

6 Be LAW MAGAZINE I SPRING I SUMMER 2003 [ I N BRIEF]

Home, (Not So) Sweet Home trust of his client. He discov­ [ HAPPENINGS ered that one year previously, Lopez Teo had been granted STUDENT FIGHTS FOR TENANT'S RIGHTS Section 8 certification, a form STIRRING COFFEE-MacArthur of federal assistance to low­ Fellow and Executive Director income families that subsidizes of the National Voting Rights rent so long as the accommo­ Institute John Bonifaz meets dation in question meets cer­ students for spirited coffee­ tain standards. Lopez Teo had time conversation. An advo­ cate of campaign finance offered to pay her landlord reform, he has challenged the using her Section 8 voucher, right of the Executive to wage but a housing agency inspec­ war without a Congressional tion fo und the apartment declaration. not up to code, and the land­ lord refused to make the MILITARY GAYS-Alastair necessary repairs. Gamble speaks on US military Goldman, aware of a Mass­ policy on sexual orientation. achusetts statute prohibiting He is one of seven US Army­ discrimination on the basis of trained Arabic linguists receipt of housing benefits, saw discharged involuntarily from the military for being openly an interesting angle to the case. gay at a time when the armed He would claim that by refus­ forces have arguably never ing to make repairs, the land­ been in greater need of peo­ lord had effectively discriminat­ ple with his linguistic abilities. ed against his client on the basis of her source of income. This SPAT ON IRAQ-Guive Mir­ was "a really valuable claim," fendereski '88 hijacks the Law says Tremblay, and "a wonder­ Library Speaker Series to make ful thing for [Goldman] to have a case for war with Iraq, aban­ discovered. " doning his advertised topic of The case went to trial in how a J.D. can affect one's view of international relations. Waltham District Court in May Plenty to smile about: Jonah Goldman '03 won a $20,000 settlement for his Sparks fly in the question-and­ 2002. Tremblay says that Gold­ first real-life client, in a landlord-tenant dispute. answer session when Professor man "worked like crazy to pull Frank Garcia grills him on the onah Goldman '03 signed a life with two young sons in a everything together and put on legal grounds for his justifica­ up for the Homelessness run-down Waltham apartment. a really skillful trial." The judge J tion of the Iraqi invasion. Litigation Clinic at BC Lopez Teo was being threat­ decided the case last January, Law's Waltham, Massachu­ ened with eviction for with­ accepting Goldman's claims LEGAL CLASSICS-Classics in setts-based Legal Assistance holding rent, which she refused and awarding Lopez Teo international and comparative Bureau (BCLAB) with an to pay until her landlord reme­ $20,000. law form the nucleus of a third important question on his died a list of defects, including When she learned of the annual gift of rare seven­ mind. After one year of law rodent infestation, broken win­ award, Goldman says his teenth- and eighteenth-centu­ school, the former lobbyist for dows, holes in the floor, and client was ecstatic. She told ry books donated to the Law Library by Professor Daniel R. nonprofits and social justice malfunctioning heating. Her him the money would change Coquillette. causes in Washington, DC, case was fairly typical of those her life by allowing her to pro­ wondered whether he could seen by the clinic, says Gold­ vide for her children in ways GRIMES GREATS-Dana square his ideals of justice man's faculty advisor Professor she could not have imagined. McSherry '04 and Rita O'Neill with the realities of legal prac­ Paul Tremblay, but unusual in More fundamentally, the expe­ '03 win the finals of the tice. Nine months later, Gold­ that the landlord would not rience had shown that she had Grimes Moot Court Competi­ man not only had the answer agree to a fair settlement out the power to improve her situ­ tion before Justice Patricio to his question, he also had of court. ation. For Goldman, too, the Serna of the New Mexico won a $20,000 settlement for Through "almost constant experience was empowering. Supreme Court and Judges his client in a tenant-landlord contact" with Lopez Teo, and "I love the social justice aspect Sandra Lynch of the First Circuit Federal Court of dispute. in spite of the language barrier of it," he says, adding that the Appeals and John Rogers Goldman's first client at and problems with inter­ case is an example of "the of the Sixth Circuit Federal BCLAB was Guatemalan San­ preters- she speaks little Eng­ impact that BCLAB has on the Court of Appeals. dra Lopez Teo, a single work­ lish, he speaks little Spanish­ community. " ing mother struggling to make Goldman began to win the -Jane Whitehead

SP RI NG I SU M MER 2003 I Be LAW MAGAZINE 7 [ I N BRIEF] r HAP PEN I N G 5 ': >, " Admissions Tally PARENT PROMOTED-Law School Fund BC LAW ENDS DECADE WITH RECORD-BREAKING STREAK Associate Director Louise There were twenty-nine candidates for each seat in this year's entering class, Parent is pro­ and the Law School remained in the top ten schools overall in applicant volume. moted to Asso­ ciate Director, 7818 Leadership 7232 Louise Parent Gifts. Since 1998, the Law School Fund has 6078 achieved record growth under 5472 5oM6 5382 5719 her stewardship. Cristina 4841 4480 Naranjo joins the Office of 4158 Alumni and Development to provide administrative support.

NARROW ESCAPE- Sabina Zimering discusses her memoir, Hiding in the Open. She sur­ vived Nazi atrocities by posing as a Catholic Pole in Germany. She later became a doctor, married, and moved to Min­ nesota, where she says she faced the challenges of learn­ ing English and working with­ in a patriarchal profession. Admissions data for Boston College Law Schoof: 1994 - 2003

SERVICE FELLOWSHIP5-First­ yea rs Stacey Baron, Beth Grot­ to, Christian Rivera, and Silvia Twin Powers Shin are awarded fellowships through the Rappaport Honors SCION OF BUSINESS, DIPLOMACY SPEAKS Program in Law and Publ ic Pol icy. Freda Fishman, associ­ ill that fellow in the EMC with Roger Marino in party, Egan presented his cre­ ate director of public interest Yankees hat please 1979, the operation was dentials as ambassador to the programs, says, "I am so W take it off," demand­ planned in Egan's basement in President of Ireland on Septem­ pleased that four of our stu­ ed former Ambassador to Ire­ Newton, Massachusetts, and ber 10, 2001. The events of dents received this prestigious award this year. It serves to land Richard J. Egan, warming financed with their credit cards. the following day, he said, recogn ize the importance BC up an audience of BC Law and Today, the company employs inevitably gave a sharp anti-ter­ Law puts on public service." business students in April. more than 20,000 workers rorism focus to his mission. BC Law Republicans' Presi­ worldwide. Among the key Chief among his concerns was VROOM ... VROOM- Hybrid dent Brian Patterson '03 intro­ practices to which Egan attrib­ persuading the Irish govern­ cars are available to test drive duced Egan as "one of the most utes EMC's success are "listen­ ment to carry out stricter sur­ on campus, thanks to the Envi­ successful businessmen in the ing to the customer," keeping veillance of Islamic fundamen­ ronmental Law Society's Earth country," the founder and employees "pumped" by public talist groups potentially using Day festivit ies in April. chairman emeritus of Hopkin­ praise, reserving criticism for Ireland as a staging point for ERROR ON THE BENCH­ ton-based EMC Corporation, private interviews, and building terrorist operations. Apologies to Sanford N. Katz an S&P 500 company and the morale by reviewing organiza­ Egan did not say why he and Joan Raphael Katz, donors world's leading supplier of tional goals at all-company resigned last December from of a bench in the Michael E. intelligent enterprise storage meetings at least once a month. "one of the best jobs in the Mone courtyard, whose names and retrieval technology. Egan Egan also advocates MBWA world." But he admitted that a w ere incorrectly listed in this shared lessons learned during (Management By Walking diplomat's life is very different magazine's FalllWinter 2002 forty years in business, and Around). from a CEO's. In business, he issue. reflected on his tenure as A political appointee of said, "I rarely had anybody ambassador. George W Bush and a substan­ telling me what to do." When Egan cofounded tial donor to the Republican - Jane Whitehead

8 Be LAW MAGAZ INE I SPR ING I SUMME R 2003 [ I N BRIEF]

LETTERS TO THE EDITOR

Gratuitous Assault? the issues to be decided by I loved the energy. As regards Michael O'Don­ the court. Rather than merely report­ nell's article (" Standing on One assumes that the two ing on the event, the piece Principle," FallfWinter 2002), cases of concern to O'Donnell captured so much of the ten­ the author alleges that "one of have been drawn to [the sion, fun, and anxiety. And it our most cherished principles, attention of] competent jurists was a great move to include so commitment to the rule of who will determine the facts, much information on the Five degrees of Hashimoto law, is under assault" by Presi­ apply the law, and reach a rea­ problem-it made the tension dent Bush. O'Donnell then soned result. seem much more credible. relates that the president's One would further assume Great photos, too. AdMan "assault" on the rule of law that should any of the parties in Thanks so much-all the consists of the State Depart­ the cases conclude that the deci­ BSA (Board of Student Advi­ HASHIMOTO'S PHOTO-OP ment's filing of an amicus brief sions suffer from legal error, the sors) folks are beaming. in support of Exxon Mobil in appellate process is available to Alexis Anderson rofessor Dean Hashimo­ a case where Exxon Mobil is remedy the error. Director of Advocacy, Pto became a poster child accused of turning a blind eye I was taught that the judi­ Boston College Law School in advertisements for to nefarious activities of secu­ cial branch of our government TIAA-CREF mutual funds ear­ rity guards at an Exxon plant functions independently from Forever Grateful lier this year. His smiling face, in Indonesia. the executive branch. Thank you for profiling Pro­ peering over a stack of law The other prong of the pres­ From my viewpoint then, fessor Paul Tremblay ("Paul books, appeared in the New ident's "assault" on the rule of what O'Donnell describes as Tremblay: Changing the World, Yorker, New York Times, At­ law is described as the Bush an "assault" upon the rule of One Lesson at a Time," lantic Magazine, Science, administration's "keeping close law is nothing more than a FallfWinter 2002). Nature, and Money. tabs" on a case where families gratuitous bashing of President Paul was my clinical super­ What drew the ad agency's of the 9111 victims are suing the Bush by O'Donnell. visor during the two semesters attention to him? "They Saudi royal family for their Charles E. Chase '68 of the 1983-1984 academic trawled the web looking for alleged role in the 9111 terrorist Dedham, Massachusetts year, and under his wise and someone with a lot of degrees," attacks. enthusiastic tutelage I heard laughs Hashimoto, A.B., M.S., I always understood that Mock Trial Triumph my own calling to poverty M .D., J.D., M .O.H. the filing of an amicus brief Thanks for Jeri Zeder's arti­ law work. in a pending case was a wa y cle on the twenty-eighth annual Nineteen years later I am to bring to a court's attention mock trial competition ("Trial still at it, and I am forever Record Year facts and/or law relevant to and Error," FallfWinter 2002). grateful that he taught me the joys of doing good lawyering FUND HITS $lM for our most vulnerable broth­ ers and sisters. Paul, and the he 2002- 2003 Law [ Be LAW RANKS WITH "US NEWS" ] Legal Assistance Bureau, are T School Fund exceeded the reasons I still read your its $1 million goal, For the third year running, average to decide each magazme. reaching that threshold for the Boston College Law School school's placement; the top James G. McGiffin Jr. '85 first time in the Law School's held its place at number school is awarded 100 points, Executive Director, history. The preliminary total at twenty-two in the annual of which the other schools' Community Legal Aid Society, the May 31 close of the fiscal rankings published by US scores are expressed as a per­ Wilmington, Delaware year showed cash gifts of News & World Report. The centage. BC Law's overall $1,019,224, a 13 percent influential guide to the best score rose two points from increase over the previous year's graduate schools in the last year to sixty-seven. BC Law Magazine would like figure of $902,526. It is the nation rates 177 ABA-accred­ BC Law also ranked among to hear from you. Send your third year in the past four that ited law schools on the basis the top five law schools for letters to BC Law Magazine, the fund has set a new record. of twelve measures of quali­ volume of applications this Letters, 885 Centre Street, "This is an exciting achieve­ ty, among them reputation, year, with an all-time high of Newton, MA 02459-1163; ment," said Dean John Garvey. student selectivity, employ­ 7,818 applicants chasing 270 email [email protected]. We "We are enormously grate­ ment rates at graduation, available places, an 8 percent reserve the right to edit letters ful to our alumni and friends and faculty resources. The increase over last year. magazine uses a weighted for length and clarity. Please for their belief in this place and -Jane Whitehead include an address and daytime their commitment to sustaining phone number. its vitality."

S PRI NG I SUM M ER 2 003 I Be LAW M AGAZINE 9 GAL L E R Y Kenneth Byrd '04

amford University '95, majored in math. Incoming president, Law Students Association.

WHAT'S YOUR FAMILY BACKGROUND? I grew up in Nashville, Tennessee. My parents are progressive, Jimmy Carter kind of Baptists, not the boycott Disney kind of Baptists.

WHAT CAME BEFORE BC LAW? After Samford University in Birmingham, Alabama, I interned as a journalist at the Baptist Joint Committee, a church/state watchdog group. I was the Congressional correspondent for their news service. Later I became the Washington, DC, Bureau Chief of Associated Baptist Press. I covered the White House, the Supreme Court, and Congress. I was like a one-man office, but being a credentialed re­ porter gave me reserved seats at some historic events: the Clinton impeach­ ment trial, the Bush v. Gore oral arguments in the Supreme Court, and several State of the Union Addresses.

WHY SWITCH TO LAW? After I'd been a reporter for a while and been around policy-making, I got to the point where it wasn't enough to merely report on matters that impact society. I wanted to be more involved in the wheels of change.

WHAT DO YOU HOPE TO CHANGE? I'm interested in social justice and very concerned about the gap between rich America and poor America. The greatness of our country will be judged by how we treat the less fortu­ nate. Some people don't want to rock the boat because some of their stuff may fall out. I think it's time to rock the boat.

-Interviewed by Jane Whitehead [ LEGAL CURRENTS ]

TRENDS AND TIMELY ISSUES

Is Sovereignty the Issue?

WHY AMERICA TURNS ITS BACK ON INTERNATIONAL LAW

nce upon a time, international law Oconsisted of reciprocal country-to­ country agreements. Treaties were executed and signed by elected representa­ tives of the American citizenry, working in their constituents' best interests. Today, however, multilateral, free­ standing bodies churn out international laws that are often contrary to American desires, says Alexander Aleinikoff, who gave the Owen M. Kupferschmid

LAWYERS CAN SEEK institutional chang.""-'--____ They can brin that ask judges to apply

HolocaustlHuman Rights Project (HHRP) lecture at BC Law last spring. He argues that the so-called "democracy deficit problem" offends the American sensibility because of citizens' strong emotional beliefs in the primacy of state, sovereignty, US has rejected the Kyoto accord, the for­ tional law, even when not explicitly and citizenship. But organizations such as mation of the ICC, and the United endorsed by the US, has the force of a fed­ the United Nations, World Trade Organi­ Nations refusal to endorse the invasion of eral statute. So certainly law propagated by zation, and International Criminal Court Iraq. And beyond the high-profile cases law-making bodies in which the US partici­ (ICC) implicitly deny that the state is an are myriad other examples of the coun­ pates has the same claim. independent actor; that sovereignty can­ try's unwillingness to comply domestical­ But legal intellectualizing won't change not be delegated outside the state; and ly with elements of international law, the minds of most Americans when they that a country's citizens, and they alone, whether they derive from WTO rules or feel their sovereignty is at stake, Aleinikoff control their own law-making process. the Convention on the Rights of the warns. "When you delegate authority to a The result, Aleinikoff concludes, "is a Child. For example, Judge A. Raymond decision-making body, the rules might not profound tension between citizenship and Randolph of the US Court of Appeals for be ones we would have agreed to." Getting international law. " the District of Columbia recently denied people to accept the rules against their the Afghani detainees at Guantanamo wishes, "is a real problem. Internationalists The Sovereignty Theory Bay access to US courts, even while he can't wish it away by saying 'common The Georgetown University law professor acknowledged that customary interna­ international law applies.'" and senior associate at the Migration tionallaw demanded it. In practice, Americans are accustomed Policy Institute argued that this funda­ Legally, Aleinikoff argues, the Constitu­ to similar democratic deficiencies. Massa­ mental difference is at the root of Ameri­ tion recognizes modern-day international chusetts' Congressional delegates may all ca's apparent hostility to international laws, regardless of sovereignty arguments. vote against a bill that nevertheless law and is the crux of his state/sovereign­ The Supreme Court ruled 100 years ago in becomes federal law, applicable within the ty/citizenship theory. In recent years, the Paquette Habana that common interna- (continued on page 12)

S PRI NG / SUMM E R 2003 Be LAW M AGAZINE II [LEGAL C U RRENTS]

(continued from page 11) Atoning for Slavery Bay State. The current President was elect­ ed despite losing the popular vote. But ARE LEGAL REPARATIONS THE ANSWER? these are examples of Americans delegat­ ing their law-making rights to other Amer­ icans; the notion of the nation-state as the ultimate form of governmental authority prevents most Americans from viewing, say, the United Nations the same way. But Aleinikoff believes that this view can change, and he exhorted the law com­ munity to get involved. First, he says, lawyers can seek institutional change. They can bring suits that ask judges to apply international law. Last year, contro­ versial US District Court Judge Jack Wein­ stein ruled, in Beharry v. US, that the INS had to reconsider its decision to deport a convicted felon, this time taking into account the effect the deportation would have on the man's child. In doing so, Wein­ Black detainees are herded to the Convention Hall following a race riot in Tu lsa, Oklahoma, June 1, 1921. stein wrote that customary international law-in this case, the Convention on the re courtroom-based reparations for light-but it promises to pose difficulties in Rights of the Child-trumps Congression- Aslavery possible? Who, after all, are future cases. Causation will also be diffi­ the plaintiffs? The defendants? Who cult to prove in claims lacking Tulsa's owes whom a duty? Is there-dread the localization of parties, harm, and evidence. LAW STIJDENTS need to word-proximate cause? What is the mea­ Can descendants of whites who benefited sure of damages? Such questions vexed the from slavery truly be said to have caused, understand that international legal scholars and practitioners who gath­ in the legal sense, the social inequities of ered in March at the Boston College Third descendants of blacks who suffered its law is as important as taking World Law Journal's symposium, "Heal­ tribulations? Further, in cases seeking dam­ a course in property or ing the Wounds of Slavery: Can Present ages for slavery generally, who exactly sues Legal Remedies Cure Past Wrongs?" whom? Are the parties whites and blacks, contract law. Early in the day, panelists introduced a writ large? key distinction in reparations litigation, which seeks to fill a gap left by stalled Race-neutral Alternatives allaw. His decision may yet be overturned, national legislation. Significant moral and Skeptics presented race-neutral measures however. Another institutional challenge legal differences separate reparations cases as alternatives to society-wide redistribu­ could come through new laws, perhaps involving specific instances of past tion. Keith Hylton, an M .l.T.-trained econ­ emulating an English "compatibility" act harm-such as the lawsuit recently filed omist, proposed incentives such as legisla­ that requires a review of all new laws to by keynote speaker and Harvard law pro­ tion denying corporate beneficiaries of determine whether they violate interna­ fessor Charles Ogletree on behalf of vic­ slavery lucrative government contracts tiona I law. tims in the notorious Tulsa race riots of until they acknowledge the skeletons in The second method open to lawyers, 1921-and those that seek broad redress their closets. Boston University law profes­ Aleinikoff says, is discourse that educates the for slavery's society-wide effects. The for­ sor and philosopher David Lyons saw public to see international law as being in mer, the symposium participants agreed, across-the-board advances in health care, conjunction with US law, not in opposition are unobjectionable. The latter, however, education, and public transportation­ to it. Such an initiative can and should start were attacked by skeptics as impractica­ race-neutral issues that disproportionately in law school, to familiarize students with ble solutions to the problem of slavery's affect blacks-as more effective means of legal systems beyond America's borders. lasting effects. redress for the African American commu­ BC Law Professor Daniel Kanstroom Statutes of limitations present an initial nity than the largely symbolic victories that endorses the proposal. "Law students need obstacle in any reparations litigation. reparations hope to offer. to understand that international law is as Clever lawyering may avoid the problem in In his emotional keynote address, Ogle­ important as taking a course in property or the Tulsa case-the plaintiffs argue that a tree said it is imperative that the repara­ contract law," he says. "It is one of the 2001 state inquiry and report on the riots tions movement overcome whatever legal central pedagogical tasks of our time." implicitly restarted the long since tolled obstacles it encounters in order to provide (continued on page 46) limitations by bringing new evidence to (continued on page 44)

12 BC LAW MACAZINE I SPRING I SUMMER 2003 [LEGAL CURRENTS]

Endangered Habitats

AFFORDABLE HOUSING LAW BULLDOZES RIGHTS, ENVIRONMENT

ffordable housing need not promote "uneconomic." This includes limits on the cost effective nor fair. The profit guarantee A sprawl, and environmental protec­ number of units built, buffer requirements allows developers to build on normally tion does not preclude affordable for wetlands or water sources, or any other unprofitable sites simply by adding the housing. Yet these two altruistic interests condition required by local bylaws that number of units necessary to make the pro­ are pitted against each other because, say reduces the developer's net profit below 10 ject "economic." The developer reaps the its critics, Massachusetts' affordable hous­ percent. Thus, the developer gets the "car­ profit while local taxpayers bear the cost of ing law ("40B") presumes that local efforts rot" in the form of a guaranteed profit. providing services. In return, the communi­ to preserve open space, clean water, and Land use law scholar Daniel K. Man­ ty's affordable housing inventory increases natural habitats are merely guises used by delker of Washington University School of by only one unit for every four market-rate suburban municipalities to avoid building Law in Missouri has come to "question units it must support. The further irony is affordable housing. Environmentalists and some of the conventional wisdom" behind that as local property taxes rise to support land use planners contend that these new developments, life-long 40B promotes sprawl by encour­ residents with moderate or fixed aging uncontrolled, unplanned incomes find themselves struggling development in environmentally to keep their own homes. valuable areas. At the recent Boston College l ooking for Solutions Environmental Affairs Law Review Better models do exist. Robert Lib­ symposium, "Twists in the Path erty, executive director of the non­ from Mount Laurel: Affordable profit organization 1000 Friends of Housing v. Environmental Protec­ Oregon, explained how Oregon tion," academics and practitioners includes affordable housing as one compared 40B to affordable hous­ of nineteen statewide planning goals ing regulations in New Jersey, Cali­ that each municipality must include fornia, and Oregon. Two main in its comprehensive land use plan. issues were highlighted: the effec­ These plans balance environmental tiveness of various programs in pro­ elements, such as farmland preser­ viding affordable housing and the vation and water resource protec­ costs of doing so. Massachusetts' tion, with economic development 40B program drew sharp criticism and urban growth centers. Oregon from environmental and housing also follows a high-density planning advocates alike because it fails to model that centers development provide sufficient housing, benefits around an urban core, thereby dra- developers at the expense of local matically reducing the sprawl effect. taxpayers, and subsidizes sprawl. programs like 40B because adequate hous­ As Jon Witten, a BC Law adjunct pro­ ing is simply not being provided where, fessor, explained, most of the country A Broken Premise and for whom, it is actually needed. First, follows the "planned state" model of The premise behind affordable housing affordability is relative. Based on median­ land use planning that requires all zoning programs is that all communities should income levels, 40B's "affordable" housing and bylaw decisions to be tied to a "mas­ provide sufficient housing to support their units in many communities are beyond the ter plan." These plans are guided (or own needs and to enable the urban poor to means of low-income families. Second, mandated) by regional or statewide plan­ move to the suburbs. Massachusetts uses a 40B subsidizes sprawl because it allows ning goals. Developers and communities "stick" to force municipalities to meet a 10 developers to dictate the location of devel­ alike know what to expect and can pre­ percent affordable housing inventory or be opments, often at the outskirts of outer­ pare accordingly. Equitable and effective vulnerable to a collateral attack by any ring suburban towns, forcing these com­ planning needs to consider all factors: developer who sets aside 25 percent of a munities to extend infrastructure and ser­ affordable housing, environmental, and development project for affordable hous­ vices to wherever a developer decides to economic development, as well as the ing units. Under 40B, if the local board build. Meanwhile, urban communities, interests of those who live in the affected denies or places conditions on its approval with infrastructure, public transportation, communities. of such a project, the developer can appeal employment opportunities, and social and to the State's Housing Appeals Committee business services already in place, are Jo Lown '03 was managing editor of (HAC). HAC can "modify or remove any largely ignored. the Boston College Environmental Affairs . . . condition or requirement" deemed Further, critics assert that 40B is neither Law Review before graduating.

SPRING I SUMMER 2003 I Be LAW MAGAZINE 13

GETTING A

Mergers, downsizings, and closings are challenging the once-sacrosanct rules by which law firms have operated for generations. What's it all mean?

[ BY DAVID REICH ]

big city law firm wants to beef up its litigation practice. If it's 1982, the firm locates and recruits the most promising future litigators from the ranks of second- and third-year law students. If it's 2002, though, they more likely start looking for a merger partner known for its litigation practice, quite possibly a firm several thousand miles away that will help the firm build a "national platform"­ in other words, a widely recognized brand name and the legal experience to back it up.

Behemoths, Blowouts, and Boutiques sold a 40-lawyer office in Silicon Valley, and com­ The year 2002 saw fifty-three mergers of US law bined its two southern California offices. In Boston, firms, and that came on the heels of a record eighty­ the venerable, 107-year-old Hill & Barlow, which two mergers in 2001. (Last year's biggest merger had given Massachusetts three governors, became joined Boston's Bingham Dana with the San Francis­ history itself when it went out of business in Decem­ co law firm McCutchen, Doyle, Brown & Enersen, to ber. Also in Boston, the 1ll-lawyer Hutchins Wheel­ form the 800-lawyer megafirm Bingham McCutchen, er & Dittmar, which at 159 years old was the city's which has offices in cities up and down both coasts, oldest firm, got swallowed up in a merger with the as well as in Singapore and London.) 13-city mega firm Nixon Peabody, while Peabody & Oddly-or maybe not so oddly-2002 was also a Arnold, a firm that goes back a hundred years, shed year of failures and radical downsizing for big-name more than two-thirds of its lawyers, remaking itself law firms on both coasts. In northern California's Bay as a small boutique firm specializing in insurance Area, the 900-lawyer Brobeck, Phleger & Harrison litigation. and the 67 -lawyer intellectual property powerhouse What exactly was going on? Some observers of the Skjerven Morrill both closed their doors after the tech legal industry say midsize firms like the late Hill & bubble burst. The Minneapolis firm of Oppenheimer Barlow (145 lawyers) and Peabody & Arnold (100 Wolf & Donnelly closed its New York City office, lawyers before the downsizing) can't swim in the

SPRI NG I SUMMER 2003 Be LAW MAGAZINE 15 same waters as the Bingham-size behemoths that have increas­ and thus less chance for mentoring and professional develop­ ingly come to dominate the legal business. (Last November, the ment. Another is a greatly reduced chance of making partner. "In National Law Journal reported that 12 US firms now have more the 1980s," says Repetti, "the expectation was that everyone was than 1,000 lawyers each, including the 3,244-lawyer Baker & going to make partner. Now the expectation in many big law McKenzie; that 32 firms have more than 750 lawyers; and that firms is that you won't make partner." since 1987, the total number of lawyers in the biggest 250 firms That, in turn, erodes loyalty. Holly English '83, a former has gone from 58,533 to 108,361, an increase of 85 percent.) practitioner and now a writer and consultant to law firms and Indeed, one Hill & Barlow partner reportedly sent an email to other organizations on management issues, points out that by clients blaming the decision to go out of business on many part­ the middle 1990s, 43 percent of associates were changing firms ners' belief that "the midsized firm model is not a viable one." before the end of their third year of practice. "This," says Eng­ And shortly after the Hill & Barlow failure, Harvard Law School lish, the author of the new book Gender on Trial: Sexual Professor David Wilkins told the Boston Globe, "Midsize firms Stereotypes and Work/Life Balance in the Legal Workplace, [can] do one of three things. They can downsize and become "results in less continuity for clients and lost revenues for the boutiques, shedding services and specializing in one area. Sec­ firm as they scramble to replace people who have left, train new ondly, they can merge with a larger firm, or they can implode and people, etc." Adds Brian Lenihan '93, formerly of Hill & Bar­ go out of business." low and currently a partner at Choate Hall & Stewart, where Others see the picture as more complicated, pointing out that he helps corporate clients arrange venture capital and merger

SOME OBSERVERS OF THE LEGAL INDUSTRY SAY MIDSIZE FIRMS CAN'T SWIM IN THE SAME WATERS AS THE BEHEMOTHS THAT HAVE INCREASINGLY COME TO DOMINATE THE LEGAL BUSINESS.

the midsize Boston firm Choate Hall & Stewart earned record deals: "If you think of highly leveraged firms where work is profits in 2002, a year when the national economy wasn't exact­ constantly being pushed down to associates, that's going to ly flourishing, while Goulston & Storrs, another midsize Boston affect the quality of the work." Still, it's hard to deny the seduc­ firm, actually brought in 15 new lawyers, growing by roughly 10 tiveness to partners-and to potential partners being recruited percent at a time when some bigger firms in the city were shed­ from other firms-of $100,000 per associate per year added to ding lawyers by the dozens. the bottom line. The fate of midsize law firms aside, however, it's hard to deny Along with bulking up on associates, many law firms that by 2002 the legal industry was facing unprecedented pres­ increased their revenues by increasing the billable hours per sures, becoming less an insulated realm unto itself and more a lawyer. "In 1963 the ABA recommended that the typical full­ business like other businesses. time lawyer bill 1,300 hours a year," English points out. Nowa­ days, typical expectations range from 1,600 billable hours to In Their Own Image more than 2,000. This results in what English calls an all-work­ oston College Law School Professor James Repetti, who all-the-time environment. "The ceaseless pressure for hours Bdid tax work for Hill & Barlow on an of-counsel basis, above all else (performance seems not to matter much often­ says the pressures on law firms started mounting, however times) is demoralizing," she says. And it "inevitably results in slowly, in the early 1980s, when big accounting firms began padding hours and cheating ... sometimes to sabotage the work­ advising law firms on how to increase their bottom lines. One place and other times because [lawyers] simply can't accumulate thing the accountants told the lawyers, according to Repetti, was the number of hours they're expected to." to load up on associates. Instead of viewing the young lawyers as At the same time that they were jacking up revenues by future partners, Repetti says, the firms, unlike Hill & Barlow, adding associates and increasing expectations for billable hours, that followed such advice increasingly came to view them as many firms were also trimming costs. Lawyer-to-secretary ratios profit centers, or "fungible commodities," worth some $100,000 began creeping up towards three-to-one. Office space began each in added profit every year. It was a strategy the accounting shrinking. In February Chicago Lawyer reported that the average firms had been following themselves, he says; thus, they were square footage in Chicago legal establishments had gone from essentially "recreating the legal profession in their own image." 1,000 to 750 per attorney and that many law firms on both the While many successful large and midsize law firms still hew East and West Coasts now featured the "one-size-fits-all office, closely to the traditional one-to-one ratio of associates to part­ whether for partner or associate." ners, many others, mostly big firms with more than 300 lawyers, Meanwhile, especially in the current down economy, the law now have two, three, even four associates per partner, according firms' corporate clients have also gotten into the cost-cutting act, to figures on the National Association for Law Placement web­ demanding, often for the first time ever, that the firms compete site. One result is less contact between the partners and associates for work. "Many clients now hold bakeoffs for lawyers," says

16 Be LAW MAGAZ INE I SPRI NG I SU MMER 2003 Lenihan, "where they interview three or four firms. In the past the same work tended to be given out more on a referral basis." This The PEOPLE Issue new competitiveness meant that some law firms, particularly mid­ size firms without national brand names, had to cut their fees to Six tips for managing a merger bring in work. It also meant that virtually every firm had to market its services- an activity at which corporate lawyers might once BY HOLLY ENGLISH '83 have looked down their noses. By 2002, Bingham McCutchen, Boston's largest firm, had an advertising budget in the millions of dollars that paid for ads in ith the trend towards consolidation, many law firms publications like the New York Times and the Wall Street Journal, W are merging with or acquiring other firms. Sometimes mailings to potential clients, and back-lit signs at airport terminals. overlooked amid the concerns about strategy and eco­ Even smaller firms, who can't afford-and probably don't need­ nomics are the people issues. Here are some key pointers for law the kind of advertising that it takes to build a national brand, still firm decision-makers. must find new ways to grab the attention of potential clients, lest • Do your homework in advance. Make sure there's a cultural they find themselves, like Hill & Barlow, with high fixed costs and match before signing on the dotted line. If your firm is hard­ declining revenues. charging and relishes weekends at the office, avoid hitching up with a firm whose lawyers prefer to spend Saturdays on the The Hill & Barlow Story links. Nestor M. Nicholas, managing partner at Nixon Peabody, ill & Barlow, by all accounts, was one of the city's best advises asking about the firm's cultural reputation and looking H legal employers and one of its most public-spirited law at compensation systems to see what the firm values. firms. Former partner David Hoffman, in an emotional • Anticipate adverse reactions. Don't be surprised if people Boston Globe opinion piece penned shortly after the firm folded, aren't thrilled about a merger. They're losing autonomy, worried wrote that Hill & Barlow was "as much a family as a business." about new bosses, confused about unfamiliar procedures, and But as with many families, there were tensions among the mem­ anxious about keeping their jobs. (Even a name change can be bers. The firm came apart after one-third of its lawyers, all from its fraught. Two years after Providence's Tillinghast, Licht & thriving real estate practice, left en masse to join Piper Rudnick, a Semonoff merged with Boston's Perkins, Smith & Cohen, the multi-city megafirm. Departing real estate partner Elliot Surkin merged entity has yet to settle on a new moniker.) told the Globe that Hill & Barlow was one of a number of "won­ • Listen and communicate. Hold open forums to allow people derful old firms in Boston that can't compete at the highest level to air their anxieties and get them resolved quickly. If debate is anymore .... We had to take our clients to a different place." squelched, it will only go underground. Share information widely Others have a less forgiving interpretation, arguing that the so that questions are answered before concerns mount. lawyers from the real estate practice felt Hill & Barlow's less suc­ • Sell the benefits. It may be obvious to those who negotiated cessful corporate and litigation practices were acting as a drag on the deal that it's a winner, but others may not get it. So it's their earnings potential. Former Hill & Barlow partner Jim Aloisi important to emphasize the benefits, such as greater resources '78, now a partner in the public law practice group at Goulston & and a broader client base. Debbie Freeman, formerly a partner Storrs, says, "I think it's about money. I do not think it's about at Hartford's Hebb & Gitlin, which merged with then-Bingham client service. I do not think it's about the training of lawyers. I Dana (now Bingham McCutchen), says, "Where at Hebb you don't think it's about any of that.. .. Lawyers generally want to might have just done it yourself, after the merger you had to ask make a lot of money. I think that lawyers generally make too someone. People may have chafed at that at first." What saved much." The firm might have survived, Aloisi adds, if the real estate the day, she reports, is that the Bingham lawyers and staff went contingent had shown more patience. "Hill & Barlow was out of their way to be helpful, overcoming resistance. rebuilding neglected practice areas, primarily the corporate area, • Devise ways to build unity. For instance, the management and needed a little time," he says. from both firms can draft a set of values governing the new entity, His ex-partner Brian Lenihan disagrees with that assessment, defining the values with specific behaviors so that people know saying the real estate lawyers' exodus was just the final blow to a what's expected of them. Also, set up procedures that force people terminally weakened institution. Lenihan points to Hill & Bar­ to mix. Freeman says that a formal associate assignment system at low's high fixed costs--especially an expensive office lease-and Bingham McCutchen "broke down the barrier of, 'I don't know their too-late realization that they had to start competing more this associate, I don't know the quality of his or her work.'" actively for corporate clients. "They expected work to come to • Take the best each culture has to offer. In a merger, there's them" is the wayan employee of another Boston law firm puts it. nothing more flattering than for the bigger firm to adopt some Even their belated marketing efforts, begun in 1999, took what of the smaller firm's systems. Holland & Knight director of mar­ Lenihan calls "an above-the-fray approach," with the firm taking keting Marty Duvall says that they recently merged with a small out "sporadic" print ads but mainly just jawboning personal con­ Chicago firm and borrowed its method of providing biographi­ tacts. Apparently, it didn't work that well. By 2002, says Lenihan, cal information on the web, even though it meant revising 1,200 "profits were down fairly substantially, after being off a few per­ resumes. Bingham McCutchen marketing director Hank centage points from 2000 to 2001." Shafran says they picked up McCutchen's executive information Two other factors strained profits further. First of all, the firm system, retained Bingham's management structure, and built a didn't always get top dollar for its work. Though both Aloisi and hybrid risk management program. Lenihan disagree, a lawyer familiar with Hill & Barlow cites this as a contributing cause of the failure, saying, "The firm took a lot Holly English, a former practitioner, is a writer and consultant to of pro bono work and government work where they took haircuts law firms and other organizations, based in Montclair, New Jersey.

SPRIN G I SUMM ER 2003 I Be LAW MA GAZINE 17 on fees ." Second, in keeping with the firm's commitment to men­ The CONUNDRUM toring young lawyers, Hill & Barlow, like many midsize firms, maintained a one-to-one associate-to-partner ratio. for Recent Graduates The Peabody & Arnold Story ike their counterparts at Hill & Barlow, the Peabody & The job search rna y be tougher, L Arnold partners experienced serious intra firm dissension in the months before they underwent their drastic transfor­ but the struggle has its benefits mation. The 100-lawyer firm had practice groups in real estate, corporate, trusts and estates, and litigation, with the litigation etween the downsizing and failures of large and midsize practice devoted almost entirely to serving the insurance industry. Blaw firms and the overall bad economic times, recent law Surviving partner John P. Connelly '85 says the litigation practice school graduates are having a tougher time finding work. was attracting lots of work, "but it was not necessarily work that Almost all former partners from the defunct Boston firm of Hill we could charge the highest rates for." Partners from the corpo­ & Barlow and the radically downsized Peabody & Arnold have rate practice group, for their part, "thought it would be hard to found good positions at other law firms; so have many, though attract [corporate] work if the potential clients knew we were not all, associates laid off by the two Boston firms. Recent grads doing other work at a lower rate" than what the corporate prac­ seem to be faring worse than either group. Says BC Law Profes­ tice charged, says Connelly. He adds that the firm was already sor James Repetti, "A lot of our students who had offers at large under pressure from clients who were "constantly vigilant about firms downtown were told, 'Sorry, don't show up. There's no the rates they're paying, shopping around to see who will provide work for you.' Some got severance bonuses from law firms with­ them with the lowest rates." out even having worked for them, and a lot of them are still out Ultimately, the litigators bought out the other partners. In ear­ looking for jobs." ly April, the thirty-two remaining lawyers moved into new quar­ Nevertheless, says BC Law Career Services Director Maris ters downstairs from the firm's old offices. As part of a new aus­ Abbene, there is a bright side for those new to the marketplace. terity program, the total floor space per lawyer in the downsized Having to work harder to find a job means many students are Peabody & Arnold is 625 square feet, compared to 700 in the old learning a lot about the workplace. "The students are develop­ establishment. In addition, the lawyer-to-secretary ratio is rising, ing good networking skills now and a good networking base with an ultimate goal of three-to-one, and the firm is employing that will help them with business development and client nurtur­ fewer paralegals and marketing and IT personnel, sometimes ing long into the future," Abbene says. "They are also showing farming out the work to subcontractors. a good sense of initiative in their searches, and good initiative is As for pro bono work, says Connelly, "It's something we do an important attribute for any lawyer." and we're going to continue to do, but there's a recognition that Still, Repetti says, in this climate he's spending "a lot more at certain times the firm might be in a position to do more of it, time counseling our students and writing recommendation let­ and at certain times the firm might be in a position to do less of it. ters"-as well as phoning contacts at firms in Chicago, New You have to have flexibility." York, and Washington, DC, on behalf of recent and prospective Even the physical process of moving showed a new attention grads. He advises the students not to restrict their job search to to keeping costs down. "In times before," says Connelly, "the Boston (or any other city in particular) and to think more move would have been accomplished by outside movers, a man­ expansively about the kind of job they might take. "If someone ager, even a moving consultant. This time, the lawyers rolled up interested in corporate law is offered a job in securities litigation their sleeves, shelved books, moved papers, hung art work on the rather than in transactional work, I suggest they take it as an walls. It gave them a new investment in the reconstituted firm." entree," says Repetti. "If someone is interested in business law, they might take a job in real estate, where they can develop the The Bingham Story skills they need in business law." Above all, he says, "I suggest ven before last year's mega-merger, Bingham Dana was one they look for jobs in places where they will get good training Eof Boston's biggest law firms, boasting 500 lawyers and because in the long term their success will depend on their skills offices in Hartford, New York, and Washington, DC, as as a practitioner and their ability to develop clients." well as overseas. But Bingham wasn't always big. In 1995, only Holly English '83, a writer and consultant to law firms and seven years before the merger, the firm, with a mere 175 lawyers, other organizations, sees the bad times in the legal industry as a wasn't much bigger than Hill & Barlow. That was the year man­ good occasion for soul-searching by recent law school gradu­ aging partner Jay Zimmerman "went on a crusade" to grow via ates. "It's amazing how many [lawyers] wind up in middle age mergers and acquisitions, according to Hank Shafran, Bingham's saying, "I don't like where I work and the kind of work I do,' " marketing director. Between then and last year, Bingham brought says English. "It's easy to drift along, following the crowd, aboard a Washington, DC, real estate practice recruited from which favors big firm careers, rather than deciding for yourself another firm; wooed away a Hartford firm's senior partners in what you like. So it's important at the outset to evaluate all litigation, real estate, and finance and the associates who worked opportunities-the corporate world, hanging out your own for them; acquired the boutique firm Marks & Murase, which shingle, joining smaller or boutique firms, working for the specialized in international law and had offices in New York and government or for not-for-profits in public interest law, or Tokyo; acquired the Hartford firm Hebb & Gitlin, with fifty-five indeed using your legal training for fields completely apart from lawyers and international law and insolvency practices; and the law." acquired Richards & O'Neil, a midsize New York City firm. -D.R. Fans of the Bingham style of growth call Zimmerman a visionary,

18 Be LAW MAGAZ IN E I SPRING I SU MMER 2 003 saying he saw early on that the firm would have to grow fast in are you can practice in more places than [a midsize firm] can." order to realize its potential in the coming years. The merged Bing­ But if big firms have big advantages, they also face some prob­ ham McCutchen has 800 lawyers, and, says Shafran, "when you lems that come with size. French says, "You like lawyers to have get up into those kind of numbers, people start to know you're loyalty and identification with the firm, and that's a challenge there." William McCormack '67, a partner in Bingham's litigation with large merged firms. It's easier for midsize firms, if you find practice, adds that the merger with McCutchen strengthened both the right niche, to create a culture where they can retain good firms by giving each a presence on the other coast. What is more, lawyers and where people can be happy and productive." says McCormack, while both merger partners were already full­ Some argue, too, that midsize firms offer more efficient, more service firms, they complemented each other's strengths, adding individualized service, especially to smaller business clients. Bing­ McCutchen's strong reputation in the litigation area to Bingham's ham's Shafran says, "If a large firm doesn't have that personal strong reputation in mutual funds and banking. touch, that attention to client service, it's not going to succeed." Bingham's profits were up 20 percent in 2002, after rising But Brian Lenihan argues that "there's a big sector [of business] every year since 1995, statistics that would seem to bear out the that needs high end legal services and would be willing to pay for wisdom of the merger/acquisition strategy. Nor is the firm fin­ them but would get completely lost in a thousand-lawyer firm." ished merging and acquiring, says Shafran. "We are still very On the topic of big law firms, Aloisi says, "Judgment, counseling, much in a growth mode," he says. "We're just starting to be large attention to detail all get lost when you're trying to be all things enough to compete for the highest level of business against the to all people." Then, turning the tables on those dooms ayers who best firms in the country." predict the demise of the midsize firm, he adds, "I think some of these megafirms are going to prove untenable .... Sophisticated The Size Equation clients are going to see they can't get the kind of value they can he varied fates of Bingham, Peabody & Arnold, and Hill get from a midsize firm." T & Barlow neatly illustrate the options Harvard Law Further, according to Lenihan, there are proven ways for mid­ School's Wilkins laid out for midsize firms- growing out size firms to market themselves to potential clients, thus over­ of the midsize category via merger; downsizing and becoming a coming what is perhaps their greatest disadvantage. "For a firm boutique firm; or simply going out of business. But are these the trying to establish a national brand, paid advertising is probably

III THINK SOME OF THESE MEGAFIRMS ARE GOING TO PROVE UNTENABLE .... SOPHISTICATED CLIENTS ARE GOING TO SEE THEY CAN'T GET THE KIND OF VALUE THEY CAN GET FROM A MIDSIZE FIRM."

-JIM ALOISI '78, FORMER HILL & BARLOW PARTNER

only options? Will the midsize firm soon go the way of the dodo critical," he admits, but his practice group at midsize Choate and the whooping crane? Not likely, says Jean French, BC Law's Hall & Stewart has a more cost-effective strategy suited to the director of career services from 1982 to 2002. "Ten years ago," firm's more modest size. "We tend to sponsor a lot of conferences she says, "during the last economic downturn, there was also and seminars in areas we're expert in," he says. "And I try to do talk about the death of midsize firms, but they lived on." a lot of speaking. For a strong regional firm, having your attor­ Still, national megafirms have some undeniable advantages neys involved in community work and professional organiza­ over their midsize competitors. Says Maris Abbene, who suc­ tions- that's really what's required." ceeded French in the career services office after fifteen years with In the end, for many clients, size doesn't matter, says BC Law Bingham Dana: "Corporations doing break-the-bank, really School's Jim Repetti. "The argument," he says, "is that, for a high-stakes things want to use a law firm that has done it high-paying client, if they're paying the same price to Hill & Bar­ before." And the law of averages dictates that a big firm is more low as to [the New York City megafirm] Sullivan & Cromwell, likely to have someone who has done it before. they're going to go to Sullivan & Cromwell. But usually, if you're Abbene also points to the increasingly important role played a corporate client, you're working with a team of three to five by legal advertising. "Look at American Lawyer," she advises, lawyers whether they're from a big firm or a midsize firm." "or the Boston Business Journal. You'll find any number of Lenihan agrees that most clients are more interested in the glossy ads [for law firms]. They even have awards for marketing lawyer they are working with than in the size of the firm where in the legal industry now." In this area, again, the advantage goes the lawyer works. "There's comfort for some large clients to the bigger firms, because they're the ones that take out--can in going with a firm that has name recognition," he says. afford to take out- the glossy ads. "But when I told my clients I was going to Choate, they Megafirms may also be better suited for work with multi-state came along. They said, 'We hired Brian Lenihan; we didn't hire or international elements. Even Jim Aloisi, an outspoken advo­ Hill & Barlow.' " cate of the midsize firm who refers to megafirms as "legal Wal Marts," admits that "if you have an 800-person firm, chances David Reich is a frequent contributor to BC Law Magazine.

SPRI NG f SU MMER 2003 I Be LAW M AGAZINE 19

A LEGAL

THE CLERGY TO BEAR SEXUAL MISCONDUCT THE SEXUAL ABUSE SCANDAL SCANDAL HAS within the Catholic Church has had a OPENED THE profound and unprecedented impact on the institution. Scores of priests CHURCH TO ha ve been removed from the ministry. UNPRECEDENTED American bishops have held two pub­ PUBLIC SCRUTINY licly humbling meetings on the church's failure to address the prob­ AND CASTA lem. The Vatican has taken up the sub­ SHADOW ON ject, issuing a mea culpa for the past. But the larger repercussions for the RELIGIOUS church are still playing out in the legal LIBERTY arena. Hundreds of lawsuits, some seeking seven-figure reparations for thousands of alleged victims, are mak­ ing their way through courts from

BY FRED BAYLES

SPRI NG I SUMMER 2003 Be LAW MAGAZINE 21 AT THE Be LAW SYMPOSIUM

Legal scholars tackle the unsettling legal questions arising from the sexual abuse scandal.

The following were the opening remarks First, the Church should give its atten­ presented by Dean Garvey at Be Law's tion first and foremost to the victims of April symposium, "The Impact of Clergy this abuse. It is bound by norms of chari­ Sexual Misconduct Litigation on Religious ty, and it should show contrition and Liberty. " repentance for its misdeeds. This is not the way other corporations behave, but lergy sexual abuse is the most the Church is not like other corporations. Cserious legal and moral problem Second, there is no creditable legal facing the Catholic Church argument that priests who engage in today. It would be hard to overstate the this kind of behavior deserve any bet­ harm to victims, the discredit to the ter treatment at the hands of the law priesthood, the loss of moral authority than ordinary criminals and tortfeasors. by the institution, or the scope of the They should go to jail for their crimes potential financial liability. It behooves and pay compensation to the limits of us as lawyers to think clearly about this their ability. problem. Let me begin by stating a few Third, the Church should cooperate points that I think are clear, or not with civil authorities in the identifica­ worth fighting over. tion and punishment of criminal clergy,

Boston to Los Angeles. On the criminal side of the law, prosecutors are internal rules and laws. In the Catholic Church, that takes the looking into the culpability of church leaders and, in some cases, flirt­ form of canon law, a religious legal system that operates sepa­ ing with the once-taboo idea of bringing charges against the church rately from the state's law. But, as the events of the last year itself. Two states, Arizona and New Hampshire, have begun monitor­ have shown, canon law does not supercede or substitute for the ing how well the church is implementing its new sexual abuse policy. laws of the state. While none of these measures is a direct attack on religious Horrendous stories about priests abusing children with seeming belief, some legal scholars fear the legal actions are chipping impunity have pushed state interests closer to the line of church­ away at the constitutional wall that separates church from state state separation. Several states have ended exemptions for minis­ and threatening the religious freedoms traditionally guarded by ters and priests from laws that require the reporting of child sexu­ the Constitution. al abuse. Judges who once sealed information about church-relat­ "Nobody disputes that the priests involved in the abuse of chil­ ed sexual abuse cases have ordered churches to lay open their pri­ dren should be criminally liable for their actions," says BC Law vate files to plaintiffs' attorneys and the media. Perhaps the most School Dean John Garvey. "I think you can even hold the bishops significant impact has been the threat of large damage awards, and dioceses responsible. But there is a significant question about which has had a subtle, but chilling effect on what the church does the boundaries between church and state. The idea of the govern­ and how it does it. ment overseeing the behavior of the bishops and watching their The financial judgments have forced many dioceses and min­ assignments makes most people pretty nervous." istries to cut back on the traditional pastoral missions of education What makes constitutional scholars like Garvey nervous is and health care. Church leaders complain that the transfer of the seeming intrusion of the state-be it by prosecutors or civil funds from collection plates to plaintiffs and their attorneys has juries-into the church's business. The free exercise clause of the limited charitable works for the old, the sick, and the poor. As a First Amendment has long been interpreted as a line not to be result, the threat of a crippling liability suit has affected once sacro­ crossed by government. Religious institutions are given great sanct church decisions on matters of personnel and administration. latitude to preach and practice their faith without interference. Just as doctors, cautious of malpractice suits, practice a defensive The Constitution prohibits the state from meddling on ques­ form of medicine, church leaders say they now face the prospect of tions of belief; it also gives the church the freedom to set its own practicing a kind of defensive ministry that has less to do with the

22 Be LAW MAGAZI NE I SPRING I SUMMER 2003 as the Boston Archdiocese has recently fairly unsettled questions: be determined by the strength of our begun to do. commitment to religious liberty-just as 1. TORT. What is the theory of tort Fourth, no one suggests that we in defamation law the limits on tort lia­ liability, the standard of fault, and the should abandon the priest-penitent bility, discovery, and proof are deter­ standard of proof? Are there effective privilege as a way of gathering evi­ mined by our commitment to the free­ statutory limitations on liability? dence in these cases. Like the Fourth dom of speech and press. Amendment exclusionary rule, the priv­ 2. CRIMINAL LAW. Can the bishops, or I said that there were five questions, ilege against self-incrimination, and the the institutional church, be held crimi­ and the fifth is not a First Amendment husband-wife privilege, this sort of evi­ nally liable? Under what theory? question because it arises in a different dentiary rule inhibits proof of crimes. legal system. Because the church did such a But like those rules, the seal of confes­ 3. EVIDENCE. In a civil or criminal case poor job of policing sexual misconduct a sion serves important social purposes against the diocese, what evidence with­ decade ago, it has no credibility on the sub­ that we should not ignore in our haste in the church is privileged against dis­ ject today. It will be judged harshly if it to convict the guilty. covery or use at trial? ever again makes the mistake of leaving an There are, however, several difficult offending priest in place. This in turn 4. BANKRUPTCY. If, as seems likely, civil legal questions that arise from this means that the church must now lean cases are successful and return large scandal. At bottom they concern the toward assuming the worst about any judgments against a diocese, can it go legal liability not of the offending accused priest, regardless how old or unre­ bankrupt? priests (people like James Porter, John liable the evidence. This is unfair to accused Geoghan, and Paul Shanley) but of the All of these questions are at bottom priests, and I repeat that it is the Church's institutional Church (the diocese of Fall First Amendment questions. The out­ own misdeeds that leads her to treat them River, the archdiocese of Boston). side limits on tort and criminal liability, so. What sort of protection should the sys­ There are, I think, five important and the limits on discovery and proof, will tem of canon law give these priests?

spiritual good and more to do with a good legal defense. "If a jury ernment could not," says Schiltz, who has defended churches in could decide you have made a mistake in a personnel choice, your more than 500 civil suits. He finds the subtle effect of liability suits lawyers are now going to say, 'I'm not going to let you make that more damaging. "When the totalitarian regime says you can't go assignment,'" Garvey says. to Mass, the beliefs are still there. But when a government doesn't forbid certain religious practices but says everything a religion does he effect of the church crisis on religious freedom was has to be reasonable as decided by a jury three years later, it makes the subject of a symposium held in April at Boston you look over your shoulder and forces you to see your church College Law School. As part of Boston College's through the eyes of the government." T "Church in the 21st Century" initiative, the Law The issue of sexual misconduct by clergy is, unfortunately, School assembled some of the nation's leading legal nothing new. Schiltz has defended such cases for years. He says the authorities on church-state relations to discuss the constitutional more typical cases involved sexual relationships between ministers implications of the church scandal. For many of the speakers, the and female parishioners. While the abuse of children by priests conclusions were sobering. made headlines over the past two decades in places like Louisiana, New laws have placed greater civil responsibilities on church Texas, California, and New Mexico, such cases were seen more as administration. Prosecutors and judges have taken a new, aggres­ anomalies-the action of a single bad priest. The priests were tried sive stance toward the church. Religious organizations might in criminal court and the dioceses were ordered to make restitution now seek bankruptcy protection from the blood-letting of civil to victims in civil court. Little national attention was paid. litigation. The case of former Rev. James Porter serves as an example The most common theme of the conference was the impact on of how times have changed. The priest, who served in Texas, church practices of the plethora of lawsuits filed by victims of sex­ Minnesota, and Fall River and other dioceses in southeastern ual abuse. Patrick Schiltz, associate dean of the University of St. Massachusetts, was accused of abusing scores of children in the Thomas School of Law in Minneapolis, believes the effect of liabil­ 1960s. While he pleaded guilty in criminal court in 1993, civil law­ ity suits against churches and ministries is more dangerous to reli­ suits against the church were settled quietly, with records sealed gious freedoms than the actions of a repressive ruler. "Litigation by the court. has the potential to do to churches what many a tyrannical go v- What brought the clergy sexual abuse issue to the forefront

S P R ING I SUMM ER 2003 I Be LAW MAGAZINE 23 The free exercise clause of the First Amendment has long been interpreted as a line not to be crossed by government. Religious institutions are given great latitude to preach and practice their faith without interference. over the past year were the revelations about the spectacular fail­ "The primary concern is to get an acknowledgement, through mon­ ings of the Boston Archdiocese. The court's decision to unseal ey, that the church was wrong for allowing the wrongful abuse of church documents opened the public's eyes to the machinations of thousands of children," Garabedian says. "This is a very spiritual the archdiocese in its attempt to cover up the scandal. A half concern that my clients have. They've lived with this nightmare for dozen priests, most notably the former Rev. John Geoghan and decades. It was time to take some of the burden off their shoulders." the Rev. Paul Shanley, allegedly abused scores of young boys Civil litigation is only one of the legal issues facing the church. despite the knowledge of archdiocesan officials. These serial Other legislative and legal steps have put the church itself in danger abusers were moved from parish to parish without a word of of criminal prosecution. A half dozen state legislatures have warning by their superiors. When church officials were stripped away religious exemptions to laws that require profession­ approached by victims' families, they advised against going to the als, including teachers and doctors, to report any hint of child sexu­ police, offering hush money instead. al abuse. Failure to comply could result in fines and even jail time. The disclosures from the court files triggered a nationwide Grand juries have convened to investigate the role of church response. Additional victims came forward in Boston and other leaders in the scandal, raising the specter that the actions of the dioceses around the country, bringing a flood of lawsuits and Boston Archdiocese were not anomalies. A Massachusetts grand more bad publicity. The scandal led to the resignation of Cardinal jury quizzed Cardinal Law and six other archbishops who once Bernard Law, who admitted he failed to protect the children served in Boston to see if the archdiocese should be charged for of the Boston Archdiocese by allowing known abusers to continue failing to stop the abuse. The panel's report is not finished, but in the ministry. Massachusetts Attorney General Thomas Reilly, citing the statutes of limitations among other things, has said he doubts criminal ngela Carmella, a professor at Seton Hall Law School, charges will be brought. In New York, Westchester County and says Law and other church leaders felt that the tradi­ Suffolk County grand juries issued blistering reports critical of tional autonomy enjoyed by religious leaders allowed church leadership that stopped short of legal action, also largely A them to handle abuse cases as administrative because the statutes of limitations had passed for the offenses. problems. "The churches might have gotten very com­ Other grand juries are still conducting their own inquiries in fortable with that constitutional position," she says. "But that is Cincinnati, St. Louis, and other cities to see if coverups similar to not the case when religious conduct threatens the public order. those in Boston took place. Then it is rightfully in the state's jurisdiction." As this article was going to press, Bishop Thomas O'Brien, The autonomy assumption has been costly. The Boston Arch­ leader of the Phoenix archdiocese, faced with the possibility of diocese paid a $10 million settlement last fall to eighty-six of being charged with obstruction of justice, publicly conceded he Geoghan's victims. The archdiocese still faces a joint lawsuit allowed priests he knew had been accused of sexual abuse to con­ brought by more than 300 alleged victims of Shanley and several tinue working with children. As part of the deal with county pros­ other priests. The financial impact of the settlements and pending ecutors, O'Brien also ceded oversight authority on the issue of sex­ cases has been felt throughout the archdiocese. Parochial schools ual abuse by priests to his chief of staff and representatives of the are being closed, budgets are being cut. Charitable services are suf­ prosecutors' office. fering. The archdiocese has drawn up a list of properties it may The closest the church has come to a criminal prosecution as an have to sell. It has even explored the idea of filing for Chapter 11 entity took place in New Hampshire-one of the few states that bankruptcy protection. has always required the clergy to report cases of sexual abuse to The news reports out of Boston created a cascading effect in the civil authorities. Last December state officials reached a kind of rest of the country as alleged victims came forward, emboldened by plea bargain agreement with the Diocese of Manchester. The the realization that they weren't alone in their shame. Other dioceses, state's attorney general's office, then headed by Philip T. McLaugh­ including Louisville, Kentucky; Milwaukee, Wisconsin; and San lin '74, dropped plans to bring child endangerment charges against Bernardino, California, are also feeling the pinch from similar civil the diocese in return for the admission by church officials that such suits. Several states, most notably California, have expanded a prosecution would have likely succeeded. The diocese also statutes of limitations on civil and criminal cases, opening the agreed to release thousands of pages of church documents related church to lawsuits for abuse alleged to have happened decades ago. to its handling of sexual abuse allegations against its priests. More­ Mitchell Garabedian, the attorney whose dogged pursuit of the over, the diocese agreed to permit state officials to monitor the Geoghan case broke the years of silence about sexual abuse, says vic­ church's new sexual abuse policy over the next five years. tims are coming forward not for the money, but for vindication. McLaughlin says certain unique factors about New Hampshire

24 Be LAW MAGAZINE I SP RI NG I SU MM ER 2003 "put us in position to bring a case"-from its proximity to Boston damages because its minIster touched the side of a woman's to the fact that all criminal prosecutions in the state are conducted breasts helping her down a stepladder. Although the church had no by the attorney general's office. knowledge of previous problems with the pastor, it was found Speakers at the Boston College symposium called the New liable because he had a past drinking problem and a marriage that Hampshire case a troubling precedent. John S. Baker Jr., the Dale was ended by an adulterous affair. E. Bennett Professor of Law at Louisiana State University Law Garvey worries that such court-set standards could have a chill­ Center, says New Hampshire's action sidestepped issues including ing effect on the clergy, denying the pulpit to many men and statutes of limitations and the degree of responsibility the present women whose earlier struggles may have given them greater diocese had for the actions of individual priests and their supervi­ insights into personal and spiritual life. "What some courts are sors some twenty to thirty years ago. "They layered novel theory saying is that you are liable if someone has a history and he does upon novel theory to get a novel agreement," he says. "Basic crim­ another bad act after taking the job," Garvey says. "If that ina I law principles should say you don't bring this case." becomes the case then St. Augustine, who led a dissolute life before More unprecedented, says Carmella, was the diocese's acquies­ he joined the church, would be a risk." cence to state monitoring. Such an agreement, she says, puts the state Schiltz agrees. "When you feel at risk to use pastors who have clearly into the church's business. "I can understand oversight to had struggles in their lives, it takes away a big swath of people whose enforce a state policy, but to have the oversight to monitor the com­ voices should be heard," he says. "In effect, that has a tremendous pliance of the diocese of its own policies is unusual," she says. impact on religion. When you change leaders, you change beliefs." Baker doesn't expect to see a repeat in other states of New Hamp­ For many people, however, there is a clear distinction between a shire's criminal case against the church because of the high hurdles St. Augustine and a John Geoghan-a distinction that prosecutors, involved in prosecution. Many of the cases go back decades and judges, and juries can easily make. "There has been an institutional involve church leadership that is now dead or retired. Proving crimi­ expectation of deference on the part of some church officials," says nal culpability of present-day officials for the past is nearly impossi­ McLaughlin. "That quickly disappears when you view it through ble. "At the end of the day, all you really have is tort liability," he says. the prism of children who have been abused." But others at the conference believe that given public anger Garabedian sees the new legal attitudes toward the church as a against the church, civil lawsuits may present an even greater, hid­ long-overdue balance to years of unquestioned autonomy granted den risk to religious freedoms than direct action by the state. "The to the church by civil authorities. "These liability suits are real," he biggest problems are the excessive demands by plaintiffs and the says. "They involve real abuse and real damages. And you prevent unwillingness to negotiate them," says Mark Chopko, general this from happening with a balance of power between the institu­ counsel for the US Conference of Catholic Bishops. "In these cases tions. If the government did not let me get involved in discovery, the tort system is acting as the civil analog to the criminal system. the media would not have been able to expose the harm the church It lets juries and courts act on their emotions." did to children."

There is no doubt that whatever the future brings, religious leaders face a challenging new world, one that no longer offers blanket protections from the laws of the state and the lawsuits of victims.

Often those emotions seem to go beyond common sense when Whatever the arguments, the realities of institutional responsi­ assessing blame to a ministry, Schlitz says. He listed a number of bilities will be a fixture within the future church. The US Confer­ suits where churches have been punished for acts of sexual abuse ence of Catholic Bishops has adopted new rules to make sure its they may not have had the power to prevent. In one case, an Alaskan clergy meets the same standards required of teachers, day-care protestant church was held liable for an attack on a child by a vol­ workers, and others whose jobs bring them into contact with chil­ unteer in a Sunday day-care program. In the course of discovery, it dren. The bishops have pledged to inform civil authorities of any was learned that the volunteer had herself been abused at an early accusation of sexual abuse. They have also sharpened their vetting age, a warning sign, the plaintiffs argued, that she was at risk to system for new priests and plan to improve teaching and training abuse children. The Alaska Supreme Court found for the plaintiffs, on issues of sexuality. ruling that the church should have asked volunteers if they had been Despite the current climate, some of the legal experts see the cri­ sexually abused. "It boggles the mind to think a church must ask sis coming to an eventual end. Schiltz believes there may be a back­ every volunteer if they have been sexually abused and assume it will lash against continuing litigation once people see the damaging get a truthful answer to the question," Schiltz says. effects on religious institutions of big-figure awards. He also hopes In another case, a Colorado protestant church was hit with a the horror of cases like Geoghan's and Shanley'S will reduce the judgment for hundreds of thousands in compensatory and punitive (continued on page 44)

SP RI NG I SUM M ER 2003 I Be LAW MAGAZINE 25 [ FACULTY ]

NEWS & RESEARCH

SCHOLAR'S FORUM US Turns Blind Eye to Global Unity

b y Da v i d W i r t h

omewhere in rural Pennsylvania, I once passed a barn with "US out of UN and UN out of US" painted prominently on its roof. This distrust for multilateralism in the American psyche resonated all too clearly in the low-grade fever that pre­ ceded the invasion of Iraq in mid-March. Now there is a serious risk that the

Bush Administration's on-again off-again approach international law is also pragmatic, adjusting to to the United Nations Security Council may ulti­ changed circumstances through the accretion of mately lead to a lose-lose scenario that destabilizes "custom." The global response to the September 11 world security. attacks is an excellent example of the potential for The conclusion of the United Nations Charter in international law to adjust to new challenges such as 1945 marked a dramatic shift in the way nations terrorism. Perpetrated as they were by a loosely approach the use of armed force. In previous cen­ structured network of individuals, the terrorists' acts turies, war had been seen as a legitimate instrument would not previously have been understood as an of foreign policy. The Charter presumes instead that "armed attack," which must be initiated by a for­ "to save succeeding generations from the scourge of eign government to warrant reliance on the inherent war," . .. "armed force shall not be used, save in the right of self-defense. common interest." The text of the Charter conse­ When President Bush went on television that quently requires Security Council authorization for evening and stated that" [w]e will make no distinc­ the deployment of armed force, the sole exception tion between the terrorists who committed these acts being individual or collective self-defense in response and those who harbor them," he potentially cat­ to an "armed attack." alyzed a change in this principle. The members of The law of war has always been controversial, NATO reinforced the momentum when they unani­ and the application of basic principles in particular mously agreed the following day to invoke Article 5 settings can produce legitimate disagreements. But (continued on page 45)

26 Be LAW MAGAZINE I S PRI NG I SUMMER 2003 [FAC U LTY]

PROFILE Mark Brodin

NO BETTER ROLE MODEL

rofessor Mark Brodin is one lucky guy. Mixed Motive Title 7 Action: A Social Pol­ patent, antitrust, criminal, and civil cases. PEvery time misfortune has barred his icy Perspective." Then came the invitation "The job confirmed my interests were pri­ way to a desired goal, circumstance to teach civil procedure as a visitor at BC marily in civil rights and civil liberties," he has handed him a fine alternative. Take the Law. "By happenstance again, my wife and says. "It gave me the opportunity to learn time, on the eve of a Vermont federal dis­ I had just moved to Newton Center, with how the court system works from the trict court clerkship, when the judge for our new daughter Rachel, and I was pon­ inside, but also to see dozens of different whom he was to work died, leading Brodin dering how to pay the mortgage," Brodin styles of trial lawyers and to be able to to Boston and a position doing criminal appeals at the public defender's office. Or the time a mentor warned him off a job, "HIS EVIDENCE CI ,ASS is packed, because yO]] know which made Brodin available for a federal you'll get Evidence, that ynu'll be abJ e to use it forever." district court clerkship. Or the time when, skipping the second day of a disappointing conference in New York, he boarded a laughs. Better still, he was hired full-time work with a uniquely talented judge." plane and met his future wife, Andrea. the following year, 1985. In 1974, Brodin became a staff attorney "In retrospect," he says, "every time Brodin forgot little of what he picked up in for the Lawyers Committee for Civil Rights. something happens to me when I think, his years of practice, and his deep knowledge His expertise grew in the areas of employ­ 'Oh boy, that's not what I planned,' some­ of civil procedure has earned him the abid­ ment and housing discrimination, police how it's always worked out in a way that ing respect of his students. Last semester, misconduct, racial violence, equal educa­ almost makes me think there's some kind the Law Students Association named him tional opportunities, and the like. "I had the of scheme going on." Faculty Member of the Year. "You don't golden opportunity to do the kinds of cases Even his coming to Boston College Law have a better role model here than Profes­ I wanted to do with the assistance and guid­ School had a touch of serendipity. Turned sor Brodin," says his research assistant, ance of veteran lawyers and with the down for a clinical teaching position here Meredith Ainbinder '04. resources of an office like that," he says. in 1979, he discovered an aptitude for Brodin himself enjoyed quality mentor­ For someone who has spent most of his scholarly pedagogy while teaching at New ing. Under the tutelage of Joseph L. Tauro, working life before an audience- be it in England School of Law, penning the much­ for one, the federal judge for whom he the courtroom or the classroom-Brodin cited "The Standard of Causation in the clerked in the early 1970s, he worked on (continued on page 44)

Brodin enjoys a reputation as a great teacher. Making his case the old·fashioned way, with blackboard and chalk. he animates his civil procedure class with lessons from his experience in practice.

SPRI NG I SUMMER 2003 I Be LAW MAGAZ INE 27 28 Be LAW MAGAZINE I SPRI NG / SUMMER 2003 FACULTY] Academic Vitae

Compiled and Edited by Deborah J. Wakefield

REGINALD ALLEYNE tion of American Law Schools forms in light of the US experience, Visiting Professor (AALS) 2003 Annual Meeting, sponsored by the Centre for Tax Washington, DC, in January. Law at Cambridge University, at Presentations: "No-Discipline Com­ Queens' College Cambridge, UK. Activities: Hosted a visit from par­ promise Clauses in Collective Participated on a panel entitled ticipants of the 2003 Bricks, Bytes, Bargaining Agreements: What "Arbitrations of Disputes under and Continuous Renovation Con­ Possible Messages for Arbitra­ Income Tax Treaties" at the annu­ ference, sponsored by the Ameri­ tors," at the Western Region Con­ al meeting of the American Soci­ can Bar Association Section of Le­ ference of the National Academy ety of International Law, Wash­ gal Education and Admissions to of Arbitrators in January. ington, DC, in April. the Bar in March. Attended the Activities: Member of a panel enti­ LLNE Spring 2003 Meeting, "Dig­ Appointments: Appointed to the Sci­ tled "Survey of 2002 Supreme Court ital Libraries: Realities, Myths, entific Advisory Board (Fachbeirat) and Circuit Court Decisions Involv­ and Misconceptions," at Suffolk of the Max Planck Institute for Intel­ ing Labor and Employment Arbi­ University Law School, Boston, in lectual Property, Competition, and tration Cases," at a meeting of the March. Led a pre-conference in­ Tax Law, Munich, Germany. American Bar Association Section stitute on project management at Other: Received an honorary doc­ on Alternative Dispute Resolutions. the annual meeting of the South­ tor of law degree from Katholieke eastern Chapter of the American ALEXIS J. ANDERSON Universiteit Leuven, Belgium, in Association of Law Libraries, Lex­ recognition of outstanding acade­ Visiting Associate Clinical Professor ington, Kentucky, in April. mic contributions to the field of tax Work in Progress: With Arlene Other: Consultant for Loyola Uni­ law in May. Continues to divide his Kanter and Cindy Slane. "Ethical versity Chicago School of Law, time between BC Law and his po­ Issues in Externship Clinics." Clin­ Chicago, Illinois, in December. sition as senior adviser to the Cen­ ical Law Review (forthcoming). tre for Tax Policy and Administra­ tion at the OECD in Paris, France. Presentations: "Externships in HUGH J. AULT Practice," at a conference entitled Professor DANIEL BARNETT "Externships: Learning from Prac­ tice" at Catholic University of Recent Publications: "US Corpo­ Associate Professor of Legal America Columbus School of Law, rate Taxation Reform from an In­ Reasoning, Research, and Writing ternational Perspective." Japan Tax Washington, DC, in March. Presentations: Presentation on cur­ Law Review 30 (September 2002): rent topics in US contracts to doctor­ Other: Awarded a Boston College 185-176 Uapanese pagination]. Teaching, Advising, and Mentor­ al students in the Comparative Law ing Grant for summer 2003 to de­ Presentations: "International Co­ Program at the University of Aix-en­ velop new course materials for operation: The OECD Initiative," Provence, France, in February. "Introduction to Lawyering and at a conference entitled "Multina­ Appointments: Chair of the Asso­ Professional Responsibility." tional Enterprise Taxation in the ciation of American Law Schools European Union" at the Universi­ Section on Legal Writing, Reason­ FILIPPA M. ANZALONE ty of Sienna, Italy, in January. ing, and Research. "Would an Exemptionfferritorial Professor and Associate Dean for System Be Simpler Than a Credit­ CHARLES H. BARON Library and Computing Services Based System?" at a seminar for Professor Recent Publications: "Got Pro­ US Treasury Department officials jects? Try Managing Them ... " at New York University School of Recent Publications: "Decisioni di AALL Spectrum 7: no. 5 (Febru­ Law, New York, New York, in Vita 0 di Morte: Giudici vs. Legis­ ary 2003): 10-11. February. "Taxation in a Global latori Come Fonti del Diritto Economy: Race to the Bottom or Presentations: "Teaching and Bioetica." Ragion Pratica 10 Race to the Top," the principal ad­ Learning with Style: The Role of (2002): 131-147. dress at Katholieke Universiteit Learning Styles in Designing Edu­ Presentations: "Judges v. Legisla­ Leuven, Belgium, in May. cational Activities," a co-presenta­ tors as Sources of Law Regulating tion at the Law Librarians of New Activities: Participated in a busi­ Bioethics," to the Philosophy De­ England (LLNE) Fall 2002 Meet­ ness-government roundtable on partment of the University of Flo­ ing at the Northeastern University the issues in business taxation, rence, Italy, in February. "Legal School of Law Library, Boston, in sponsored by the Organization for Regulation of Assisted Death of November. A presentation on pro­ Economic Cooperation and De­ Terminally III Patients," to a class ject management, as part of the velopment (OECD) in January. in privacy and the law at Welles­ Section on Law Libraries New Di­ Chaired a seminar on the proposed ley College, Wellesley, Massachu­ rectors' Workshop at the Associa- United Kingdom corporate tax re- setts, in April.

SPRING I SUMM ER 2003 I BC LAW M AGAZINE 29 FACULTY]

KAREN S. BECK in February. Presented a mock DANIEL R. COQUILLEITE the University of Illinois College of Curator of Rare Books, class for the Boston Youth Op­ Professor Law, Champaign, Illinois, in April. portunity Council in March. Legal Information Librarian, Work in Progress: Josiah Quincy's Appointments: Appointed visiting and Lecturer in Law Other: Hosted a delegation from Notebook: The Origins of Ameri­ professor of law at Vanderbilt Uni­ the Japanese Supreme Court. versity, Nashville, Tennessee, for Activities: Attended the annual can Legal Education. University of Hosted Dean Vladimir Utkin of the fall 2003 semester. spring meeting of the Law Librarians Virginia Press (forthcoming the Law Institute of Tomsk State of New England, "Digital Libraries: 2003-2004). "The 'Purer Foun­ Other: Quoted in Business Week University, Tomsk, Russia, in Realities, Myths, and Misconcep­ tains': Bacon's Theories of Legal and US News & World Report re­ April. Received the Ruth-Arlene tions," at Suffolk University Law Education." garding corporate attorneys and Howe Award for Outstanding School, Boston, in March. financial fraud, and interviewed Faculty Member from the BC Law Presentations: "The Recent Histo­ as a featured guest on National Black Law Students Association in ry of Harvard Law School," to the Public Radio. SHARON L. BECKMAN April. Visiting Committee of the Harvard Assistant Professor Law School Board of Overseers ANTHONY P. FARLEY MARK S. BRODIN in April. "The 'Purer Fountains': Activities: Moderated a colloquium Bacon's Theories of Legal Educa­ Associate Professor that featured presentations by grad­ Professor tion," the Francis Bacon Founda­ Other: Residential fellow and uate students on topics relating to Presentations: "Scientific Evi­ tion Lecture at the Huntington member of a research group enti­ the African and African American dence," at the Center for Advanced Library in San Marino, California, tled "Redress in Law, Literature, experience, and participated on the Legal Studies at Suffolk University in May. panel, "Dred Scott to Grutter: Civ­ and Social Thought" for the spring Law School, Boston, in April. Activities: Chair of the BC Law il Rights through the Years," as part semester at the University of Cali­ Seventy-fifth Anniversary Task of Black History Month at BC Law Activities: Member of the panel, fornia Humanities Research Insti­ Force. Reporter for the US Judicial in February. With BC Law faculty "Dred Scott to Grutter: Civi l tute, Irvine, California. Conference Committee on Rules members and a representative from Rights through the Years," for of Practice and Procedure. the Civil Rights Project at Harvard Black History Month at BC Law SCOTT T. FITZGIBBON in February. University, participated on a panel Appointments: Appointed Lester Professor concerning the University of Michi­ Other: Quoted in the Boston Kissel visiting professor of law gan affirmative action admissions Globe regarding the US detention at Harvard Law School for Recent Publications: "Marriage cases before the US Supreme Court, of suspected terrorists, and in the 2003-2004. and the Good of Obligation." in April. Springfield (Massachusetts) Union American Journal of Jurispru­ Other: Donated a collection of rare dence 47 (2002): 41-69. Other: Recognized by the BC Law News regarding a young child tes­ seventeenth- and eighteenth-cen­ Black Law Students Association tifying in a murder case, in Febru­ tury books to the BC Law Library. FRANK J. GARCIA for valuable contributions in the ary. Received the BC Law Faculty The collection will be on view in area of diversity. Member of the Year Award from the Daniel R. Coquillette Rare Professor the Law Students Association in Book Room this fall. April. Recent Publications: "Evaluating MARY SARAH BILDER International Economic Law Dis­ LAWRENCE A. CUNNINGHAM pute Resolution Mechanisms." Associate Professor GEORGE D. BROWN Professor South Texas Law Review 42: no. Activities: Assisted in running ses­ Professor and Associate Dean 4 (Fall 2001) (Symposium: Inter­ sions of the Legal History Round­ for Academic Affairs Recent Publications: "Behavioral national Economic Conflict and table at BC Law in February, Finance and Investor Gover­ Appointments: Appointed associ­ Resolution): 1215-1226. March, and May. Served on the nance." Washington and Lee Law ate dean for academic affairs by Work in Progress: Trade, Inequal­ Applications Committee of the J. Review 59 (Summer 2002): Dean Garvey in March. ity, and Justice. Transnational Willard Hurst Summer Institute, a 767-837. (Also translated into Publishers (forthcoming). "The legal history institute sponsored by Chinese). the American Society of Legal His­ R. MICHAEL CASSIDY Global Market and Human Work in Progress: "Semiotics, tory, at BC Law in February; and Rights: Trading Away the Human Associate Professor Hermeneutics, and Cash: An Essay on the selection panel for the Colo­ Rights Principle," reprinted in the on the True and Fair View." North nial Society of Massachusetts Recent Publications: "Sharing Sa­ Human Rights volume of Interna­ cred Secrets: Is It (Past) Time for a Carolina Journal of International Graduate Student Forum in Early tional Library of Essays in Law Law and Commercial Regulation American History. Dangerous Person Exception to and Legal Theory. Ashgate Press the Clergy-Penitent Privilege?" (forthcoming 2003). "The Appeal (forthcoming 2003). "The Salmon Appointments: Reappointed to a William and Mary Law Review and Limits of Internal Controls." Case: Evolution of Balancing three-year term on the Supreme Ju­ 44: no. 4 (April 2003): "Sarbanes-Oxley and the Rest of Mechanisms for Nontrade Values dicial Court Historical Society 1627-1778. the World." in WTO," part of an edited vol­ Board of Overseers. Presentations: "Role of the Media Presentations: "Semiotics, Hermeneu­ ume on trade and human health. in the Church Sexual Abuse Crisis," tics, and Cash: Solving Global Ac­ Cambridge University Press ROBERT M. BLOOM at a forum entitled "Media and the counting's Biggest Problem," at a (forthcoming 2003). Professor Crisis in the Church," sponsored by conference on international ac­ Appointments: Selected by the In­ the Boston College Department of counting harmonization at the ternational Law Institute to take Recent Publications: "Jailhouse In­ Communication and the Church in University of North Carolina at part in a United States Agency for formants." Criminal Justice 18: the Twenty-first Century initiative Chapel Hill in February. "Sar­ International Development pro­ no. 1 (Spring 2003): 20-27, 78. in February. Featured speaker at a banes-Oxley and the Role of gram, training government minis­ Activities: Member of the panel, professional responsibility training Lawyers in Public Companies," at ters and negotiators in Bolivia in "Dred Scott to Grutter: Civil program for the Suffolk County Columbia University Law School, trade law and studying modern­ Rights through the Years," for (Massachusetts) District Attorney's New York, New York, in April. ization and harmonization issues Black History Month at BC Law Office in April. "Internal Controls and Risk," at in Bolivian commercial law.

30 BC LAW MAGAZ IN E I SPRING I SU MMER 2 003 [FACULTY]

Promotions: Promoted to full pro­ four proposed bills to reinstate fessor in March. the death penalty in Massachu­ Other: Named director of the new Comings and Goings setts. Quoted in the Salt Lake Tribune on the potential conflicts Law and Justice in the Americas between the victim's family and Program at BC Law. FACULTY ON THE MOVE the prosecution in the Elizabeth Smart case. JOHN H. GARVEY he year 2003 has first sabbatical in twenty­ Dean T brought a flurry of three years. IRENE R. GOOD Presentations: "I'll Be Your Mir­ changes to the Law Promotions to full profes­ Educational Technology Specialist, ror," to the Association of Ameri­ School fac ulty. Dean John sor went to Frank Garcia, Legal Information Librarian, and can Law Schools (AALS) Section Lecturer in Law for the Law School Dean at the Garvey has appointed, pro­ Kent Greenfield, and Ray Activities: Attended the annual AALS 2003 Annual Meeting, moted, hired, and said adieu Madoff. Dan Kanstroom was Washington, DC, in January. to some of the finest faculty promoted to clinical professor conference of NERCOMP, the North East Regional Computing Activities: Moderated the AALS in the nation. while Evangeline Sarda rose to Program, entitled "Balancing the Section for the Law School Dean Leaving to become Dean of assistant clinical professor. All New, the Old, and the Unexpect­ panel entitled "Huis Clos: the William S. Richardson promotions considered this ed" in Worcester, Massachusetts, Through the Eyes of Others" at the School of Law at the Universi­ spring were granted, and Dean in March. association's annual meeting in ty of Hawaii at Manoa is Garvey called the advance­ Promotions: Appointed educational January. Aviam Soifer. A legal historian ments "the most important technology specialist in December. Appointments: Elected chair of the and constitutional law expert, thing we've done this year." AALS Section for the Law School Other: Granted a summer research Dean. Soifer was Dean of BC Law Joining the faculty this fall lea ve to in vestiga te the uses and from 1993- 1998. He is a is Father Gregory Kalscheur. applications of educational tech­ nology in the law school classroom. LESLIE ESPINOZA GARVEY 1972 graduate of Yale Law After graduating from the School and former professor University of Michigan Law Associate Clinical Professor KENT GREENFIELD at the Boston University and School, he worked as an asso­ Presentations: "Protecting Client University of Connecticut ciate at a Washington, DC, Professor Rights: The Law and Human Ser­ firm and taught political sci­ Recent Publications: "September vices," at a conference entitled schools of law. A prolific 11 and the End of History for Cor­ "The Law as a Resource in Pro­ scholar, Soifer publications ence at Georgetown University porate Law." Tulane Law Review tecting Client Rights," sponsored include Law and the Company and Loyola College. He later 76 (June 2002) (Socio-Economics by the City of Newton (Massa­ We Keep, which was awarded received his Master of Divini­ and Corporate Law Symposium: chusetts) Community Develop­ the triennial Alpha Sigma Nu ty from the Weston Jesuit The New Corporate Social Re­ ment Office in March. National Jesuit Book Prize in School of Theology. Kalscheur sponsibility): 1409-1429. 1998. A send-off was held in plans to teach constitutional PHYLLIS GOLDFARB Presentations: "The State of Pro­ his honor in May. law and law and religion. gressive Corporate Law Scholar­ Professor Professor George Brown Irene R. Good added Edu­ ship," a faculty colloquium at Recent Publications: "Counting was appointed Associate cational Technology Specialist Seattle University School of Law, the Drug War's Female Casual­ Dean of Academic Affairs, a to her title of Legal Informa­ Seattle, Washington, in March. "The Undemocratic Centerpiece ties." Journal of Gender, Race, and post he previously held under tion Librarian and Lecturer in Justice 6 (Fall 2002) (Symposium: of Corporate Law: The Internal Soifer. A world-renowned Law. Mary Ann Neary was The Law's Treatment of the Dis­ Affairs Doctrine," at the Fourth advantaged: The Politics of the teacher and scholar, Brown hired as Legal Information Annual Public Law Conference American Drug War): 277-296. joined the Law School faculty Librarian and Lecturer in at Duke University School of "Picking Up the Law." University in 1971. He has authored Law. She has worked in the Law, Durham, North Carolina, in December. of Miami Law Review 57 (2002): more than thirty articles and Massachusetts State Library 101-115. delivered numerous presenta­ for eighteen years and is a Activities: Guest lecturer in a class Appointments: Invited to be a tions nationwide. Brown well-known lecturer, teacher, on corporate governance at the Seat­ founding member of the Persua­ tle University School of Law, Seattle, replaces Professor Sharon and writer. Washington, in March. Moderator sion Institute, sponsored by the Ad­ O'Connor, who is taking her - Sarah Khan ministrative Office of the US of the panel, "Corporate Law/Secu­ Courts and dedicated to training rities," at the Fourth Annual Public death penalty litigators in narrative Law Conference at Duke University theory. Appointed to the School of Law, Durham, North Car­ Organizing Committee for the olina, in December. Extended Joint Program of the Sec­ Promotions: Promoted to full pro­ tions on Litigation, Minority fessor in March. Groups, and Clinical Education for Other: Received a research incen­ the Association of American Law tive grant from Boston College to Schools 2004 Annual Meeting. work on his book, The Beginning Other: Testimony to the Joint of History for Corporate Law: Committee on Criminal Justice of George Brown Aviam Soifer Progressive Ideas for Controlling the Massachusetts legislature on Corporate Power.

SPRI NG I SU MMER 2003 I BC LAW M AGAZ IN E 31 [FACULTY]

INGRID M. HILLINGER SARAH IGNATIUS 'Our Rock' Professor Adjunct Professor Recent Publications: With Ray­ Activities: Chaired a training ses­ mond T. Nimmer and Michael G. FRIENDS CHEER HOWE'S LEGACY sion for pro bono attorneys repre­ Hillinger. Commercial Transac­ senting asylum seekers, hosted by tions, Secured Financing: Cases, the Boston Bar Association for the Materials, Problems. 3rd ed. Political Asylum/Immigration Newark, NJ: LexisNexis, 2003. Representation Project (PAIR) in Presentations: "Environmental March. Presented on the topic of Obligations in Bankruptcy: 2003" asylum procedures with the new and "Landlords, Tenants, and Sec­ Bureau of Citizenship and Immi­ tion 363: Congress, the Statute, gration Services of the US Depart­ and the Courts," at the Southeast­ ment of Homeland Security at the ern Bankruptcy Law Institute, At­ PAIR training session. lanta, Georgia, in March. RENEE M. JONES RUTH-ARLENE W. HOWE Assistant Professor Professor Work in Progress: An article on the Activities: Member of the panel, Sarbanes-Oxley Act of 2002 forth­ "Dred Scott to Grutter: Civil coming in Business Torts Journal. Rights through the Years, " for Presentations: Presentation on the Black History Month at BC Law role of shareholder activism in cor­ in February. Introduced guest porate reform for the Leadership speaker at a panel, "Celebrating Portrait of a pioneer: Ruth-Arlene W. Howe. the first African American woman for Change Program at the Carroll Thirty Years of Roe v. Wade," School of Management at Boston to become a full professor at Be Law. beams during a ceremony in her honor. sponsored by the BC Law Repro­ College in December. "Sarbanes­ ductive Choice Coalition in Feb­ the New Federal Legislation," as ruary. Presentation and discussion part of a seminar entitled "Direc­ Portrait unveiling was Barbara Dortch-Okara '74 of Phil Bertelson's documentary tor and Officer Liability: Evolving A held for Professor remembered her days as a film, "Outside Looking In: Trans­ Issues in a New Corporate Era," Ruth-Arlene W. Howe classmate of Howe. "She was racial Adoption in America," at a sponsored by the Center for Ad­ '74 in January, celebrating different. She was our rock. meeting of the Archway Interdis­ vanced Legal Studies at Suffolk her commitment to the Law Ruth has been the link who ciplinary Adoption Study Group University Law School, Boston, in at Massachusetts General Hospi­ April. School and her promotion of has kept me informed and tal, Boston, in March. its diversity. Howe is the first connected to the Law Activities: Participated in the Other: Professor Howe was hon­ "Your Life and the Law" panel on African American woman to School." ored for her contributions to the balancing work and family life at hold the rank of full profes­ Acclaimed by Howe as the profession and the Law School BC Law in November. sor at BC Law, where she future of leadership, Black community at a portrait unveiling Other: Quoted and pictured in a has served for more than Law Student Association and reception held on campus in story about new Securities and Ex­ twenty years. President Kali Billingslea '04 January. Awarded a grant from the change Commission disclosure Dean John Garvey praised said she tells prospective stu­ Jesuit Institute at Boston College rules in the Chicago Tribune in to further her work on a history of September. Howe, saying, "Not one alum­ dents, "Be Law is the Disney­ African American students at BC na knows more about our land of law schools, and we Law. Quoted in the Boston Globe DANIEL KANSTROOM Mrican American students. have Professor Howe." for a story on transracial adoption. She has lived that experience Howe said she was "over­ Clinical Professor and has it all in her head and whelmed and humbled" by RICHARD G. HUBER Recent Publications: "From the her heart." Seven people of­ the event, and she herself Professor Emeritus Reign of Terror to Reining in the Terrorists: Defining the Rights of fered tributes to Howe, includ­ honored each of those who Recent Publications: With Maryann Noncitizens in the Nation of Im­ ing Richard Huber, professor spoke on her behalf. She Civitello et al. "Low- and Moderate­ migrants." New England Journal emeritus of the Law School. called the ceremony "a gift to Income Housing: The Anti-snob Zoning Act, Linkage, Inclusionary of Comparative and International "She has done so much, so my grandchildren ... to moti­ Law 9: no. 1 (2003): 47-107. "Un­ Zoning, and Incentive Zoning. " In well, that it's impossible to vate them and to be a lasting lawful Combatants in the United Massachusetts Zoning Manual: States: Drawing the Fine Line be­ outline all her accomplish­ memory for them." 2002 Supplement, vol. 1, edited by tween Law and War. " Human ments," he said. Also in her honor, the Martin R. Healy, 5-i-5-iv, 5-1-5- Rights 30: no. 1 (Winter 2003): Other speakers remarked Black Law Student Associa­ 54. Boston: Massachusetts Con­ 18-21. on her contributions to the tion announced that its annual tinuing Legal Education, 2002. Presentations: "Post-September 11 black community at BC Law, Heritage Dinner will hereafter "Massachusetts's Law Schools." In Legal Chowder: Lawyering and Enforcement Practices and the Cit­ where she has supported and be known as the Ruth-Arlene Judging in Massachusetts, Rudolf izenINoncitizen Line," as keynote mentored numerous black Howe Heritage Dinner. Kass, editor, 56-62. Boston: Mass­ speaker at the ACLU of Massa­ students. The Honorable - Tiffany Winslow achusetts Continuing Legal Edu­ chusetts Amicus Club, Boston, in cation, 2002. March. "Two Hundred Years of

32 BC LAW MAGAZINE I SPR ING I SU MM ER 2003 [FACULTY]

Extra-constitutional Immigration of the Institute for Family Values; Comment on "Tax Consequences Columbus School of Law, Wash­ Law: How Did We Get Here and the Religion, Law, and Culture on Wealth Accumulation and ington, DC, in March. "Update on Where Are We Now?" a faculty Project at the University of Chica­ Transfers of the Rich," by Woj ­ Nondiscrimination and Military colloquium at the University of go Divinity School; and McGill ciech Kopczuk and Joel Slemrod. Recruiting Policies," to the BC Cincinnati, Cincinnati, Ohio, in University'S Institute for the Study In Death and Dollars: The Role of Law Alumni Council in March. March. of Marriage, Law, and Culture, at Gifts and Bequests in America, Other: Honored by the BC Law Activities: Reappointed co-chair of Harvard Law School, Cambridge, Alicia H. Munnell and Annika Lambda Law Students Association the Committee on Immigration Massachusetts, in March. "Trade Sunden, editors, 249-257. Wash­ for his support on behalf of the in­ Law of the American Bar Associ­ Unions, Workers' Participation, ington, DC: Brookings Institution terests of gay and lesbian students. ation Section on Individual Rights and Collective Bargaining in Ger­ Press, 2003. and Responsibilities. many and in the EU," as invited Work in Progress: "Mediating Pro­ MARGUERITE MOST panelist at "The Future of Orga­ bate Disputes: A Study of Court­ Promotions: Promoted to full clin­ Collection Development Librarian nized Labor: Restoring the Bal­ Sponsored Programs." ical professor in March. ance in a Time of Growing In­ Recent Publications: "Electronic equality," an international confer­ Presentations: "How Should the Other: With BC Law students and Needs of Patients and Family Journals in the Academic Law Li­ attorneys from Choate, Hall & ence sponsored by the University brary-Law Reviews and Be­ of Texas School of Law and the Members Be Accommodated at Stewart in Boston, mentored a suc­ the End of Life?" at the End of Life yond." Legal Reference Services Ray Marshall Center for the Study Quarterly 21: no. 4 (2002): cessful political asylum case in im­ Conference, sponsored by Boston migration court for a Coptic of Human Resources, in Washing­ 189-258. ton, DC, in April. "Solidarity: College Initiatives on Aging, New­ Christian client. With BC Law stu­ Activities: Attended the Law Some Reflection on the Roots and ton, Massachusetts, in March. dents and attorneys from Peabody Librarians of New England (LLNE) Significance of an Idea," as part of Promotions: Promoted to full pro­ & Arnold in Boston, mentored a Fall 2002 Meeting at Northeastern the Elmbrook University Center fessor in March. successful political asylum case be­ University School of Law, Boston, lecture series, Cambridge, Massa­ fore the US Immigration and Nat­ Other: Quoted in the Boston in November; the Association of chusetts, in April. uralization Service for a torture Globe regarding the importance of American Law Schools 2003 An­ victim from Somalia. Appointments: Appointed a mem­ naming guardians for children. nual Meeting, Washington, DC, in ber of the Family Law Project. January; the 2003 Bricks, Bytes, SANFORD N. KATZ PAUL R. MCDANIEL and Continuous Renovation Con­ Darald and Juliet Libby JOSEPH P. LlU Professor ference, sponsored by the Ameri­ Professor of Law Assistant Professor can Bar Association Section of Le­ Recent Publications: With James gal Education and Admissions to Other: Named to the Scientific Recent Publications: "Copyright R. Repetti and Paul L. Caron. Fed­ the Bar at Suffolk University Law Committee of the International and Time: A Proposal." Michigan eral Wealth Transfer Taxation: School, Boston, in March; and the Society of Family Law for the or­ Law Review 101 (November Cases and Materials. 5th ed. New LLNE Spring 2003 Meeting, host­ ganization'S fall 2003 conference. 2002): 409-481. York: Foundation Press, 2003. ed by Suffolk University Law Li­ Work in Progress: "Copyright Activities: Invited conferee at a brary, Boston, in March. THOMAS C. KOHLER Law's Theory of the Consumer." seminar for US Treasury Depart­ Professor Boston College Law Review ment officials on the future of in­ ZYGMUNT J. B. PLATER ternational taxation at New York Work in Progress: "Employee Rep­ (forthcoming 2003). "The DMCA Professor and the Regulation of Scientific University School of Law, New resentation, the Notion of Soli­ Work in Progress: "Environmental Research." Berkeley Technology York, New York, in February. darity, and the Secret History of Citizen Suits after Thirty-five Law Journal (forthcoming 2003). American Labor Law." JUDITH A. MCMORROW Years." Widener Law Review Presentations: "The DMCA and Presentations: "Who Is an Em­ Professor (forthcoming) (Symposium: Envi­ ployee and Why Does It Matter?" the Regulation of Scientific Re­ ronmental Citizen Suits at to the Harvard Trade Union and search," at the Law and Technol­ Presentations: "Ethical Develop­ Thirtysomething: A Celebration the Labor and Work life programs ogy of Digital Rights Management ments" and "The Federal Law of and Summit). Conference at the University of at Harvard Law School, Cam­ Attorney Conduct," at the Ameri­ Presentations: "Environmental California at Berkeley, and as part bridge, Massachusetts, in January. can Law Institute-American Bar Citizens Suits after Thirty-five of a faculty colloquium series at "Employee Representation, the Association program, "Civil Prac­ Years," at a symposium entitled the Northeastern University Notion of Solidarity, and the Se­ tice and Litigation Techniques "Environmental Citizen Suits at School of Law, Boston, in Febru­ cret History of American Labor in Federal and State Courts," Thirtysomething: A Celebration ary. Law," to the University of Tokyo St. Thomas, US Virgin Islands, in and Summit" at Widener Univer­ Faculty of Law, as distinguished Activities: Attended the Second January. sity School of Law, Wilmington, lecturer at the Eighth Annual Joint Conference of the Asian Pa­ Appointments: President-elect of Delaware, in April. "Biodiversity Japan International Labor Law cific American Law Faculty and the Association of American Law and the Law," as part of the biol­ Foundation, Tokyo, Japan, in Feb­ the Western Regional Law Teach­ Schools Section on Professional ogy seminar series at Harvard Uni­ ruary. "Comparative Advantages? ers of Color, Seattle, Washington, Responsibility. versity, Cambridge, Massachu­ The Protection of the Employment in March. setts, in April. Bond in German and American ALAN MINUSKIN Law," to the Kansai Region Aca­ RAY D. MADOFF Associate Clinical Professor JAMES R. REPETTI demics Group at Osaka Universi­ Professor Professor ty, Osaka, Japan, in February. Presentations: "International Clin­ "The Principles of Family Disso­ Recent Publications: "Lurking in ical Externships: Boston College Recent Publications: With Paul R. lution: An Example of a Trend to­ the Shadow: The Unseen Hand of Law School's London Program," McDaniel and Paul L. Caron. Fed­ ward Dejuridification? Some Doctrine in Dispute Resolution." at a conference entitled "Extern­ eral Wealth Transfer Taxation: Comparative Reflections," to the Southern California Law Review ships: Learning from Practice" at Cases and Materials. 5th ed. New Family Law Project, a joint project 76 (November 2002): 161-187. Catholic University of America York: Foundation Press, 2003.

SPRI N G I SU MM ER 2003 I BC LAW M AGAZ IN E 33 [FACULTY]

Supplement 6 (2003 update): sions to the Bar at Suffolk Univer­ Presentations: "Disability and the PAUL R. TREMBLAY "United States." In The Interna­ sity Law School, Boston, in Law," at the Sixth Annual Meet­ Clinical Professor tional Guide to Partnerships. Edi­ March. ing of the Association for the Study tors: Kees van Raad and Paul of Law, Culture, and the Human­ Recent Publications: "Interviewing Activities: Member of a panel enti­ Bater. Amsterdam: International ities at Benjamin N. Cardozo and Counseling across Cultures: tled "Teaching and Training Li­ Bureau of Fiscal Documentation, School of Law at Yeshiva Univer­ Heuristics and Biases. " Clinical brarians" at the Law Librarians of c1996-2003. sity, New York, New York, in Law Review 9: no. 1 (2002): New England (LLNE) Fall 2002 March. "Disliking Like Cases: Has 373--416. "Shared Norms, Bad Work in Progress: With Hugh J. Meeting at Northeastern University Formal Equality Become a Solemn Lawyers, and the Virtues of Casu­ Ault, et al. Comparative Income School of Law, Boston, in Novem­ Mockery," the Colin Raugh istry." University of San Francisco Taxation. 2nd ed. With Paul R. ber. Taught the statutory research Thomas O'Fallon Memorial Lec­ Law Review 36 (Spring 2002): McDaniel and Hugh J. Ault. In­ section of a Massachusetts Contin­ ture in Law and American Culture, 659-710. troduction to United States Inter­ uing Legal Education course enti­ at the Oregon Humanities Center national Taxation. 5th ed. tled "Conducting Legal Research" Presentations: "Moral Activism at the University of Oregon, Eu­ Manque," as part of a clinical the­ Presentations: "The Impact of in December. Attended the LLNE gene, Oregon, in April. ory workshop at New York Law Evolving Methods of Statutory In­ Spring 2003 Meeting in March. School, New York, New York, in terpretation and Regulation Re­ Activities: Served on the Applica­ February. "Protecting Client view on the Partnership Anti­ FRANCINE T. SHERMAN tions Committee for the J. Willard Rights: The Law and Human Ser­ abuse Regulations," at the Boston Adjunct Clinical Professor Hurst Summer Institute, a legal vices," at a conference sponsored Tax Forum in April. and juvenile Rights Advocacy history institute sponsored by the by the City of Newton (Massa­ Project Director American Society of Legal Histo­ Activities: Invited conferee at a ry, at BC Law in February. Partic­ chusetts) Community Develop­ seminar for US Treasury Depart­ Recent Publications: Girls in the ipated in an affirmative action de­ ment Office in March. ment officials on the future of in­ juvenile justice System: Perspec­ bate, co-sponsored by the South Activities: Member of the Associ­ ternational taxation at New York tives on Services and Conditions of Asian Law Students Association ation of American Law Schools University School of Law, New Confinement. [n.p.] Girls' Justice and the Federalist Society at (AALS) Section on Responsibility York, New York, in February. Initiative, 2003. "How Girls Enter Boston University School of Law panel, "Legal Ethics and Client and Move through the Juvenile in March. Chair of a session enti­ Counseling from Legal Aid to En­ JAMES S. ROGERS Justice System." Girls' Coalition tled "The Nexus between Nation­ ron," at the AALS 2003 Annual Professor Newsletter 10, issue 1 (Fall al and International Law" at Meeting in Washington, DC, in 2002IWinter 2003): 7. "Both Sides of the Bench: New January. Recent Publications: Review of In­ Presentations: "Girls and Women Perspectives in International Law dustrializing English Law: Entre­ in the Courts," to the Norfolk and Human Rights," a program CATHARINE WELLS preneurship and Business Organi­ (Massachusetts) District Attor­ sponsored by the International zation, 1720-1844, by Ron Har­ Professor ney's Office Anti-crime Council in Center for Ethics, Justice, and Pub­ ris. American journal of Legal May. lic Life at Brandeis University, Presentations: "Poverty, Wealth, History 44 (July 2000): 314-316. Waltham, Massachusetts, in April. Status, and Inequality," closing Activities: Attended the final Activities: Moderated a program Participated in the Kennedy Li­ comments at the Fifth Annual Tri­ Diplomatic Session of The Hague entitled "Connecting Girls' Pro­ brary Forum, "March on Wash­ na Grillo Pu blic Interest and Social Conference on Private Interna­ grams and Girls in Juvenile Jus­ ington," one of a series of round­ Justice Law Retreat, sponsored by tional Law as the US delegate on tice," a peer-led discussion spon­ table discussions on the civil rights the Society of American Law a project to negotiate and draft a sored by the Girls' Coalition of movement in 1963, at the John F. Teachers at Santa Clara Universi­ Convention on Choice of Law for Greater Boston in February. Con­ Kennedy Library, Boston, in April. ty School of Law, Santa Cruz, Cal­ tinues as a member of the board of ifornia, in March. "State Law Securities Holding through Securi­ Appointments: Appointed dean of the the New England Juvenile De­ Mechanism for Protecting Assets ties Intermediaries, at The Hague, William S. Richardson School of Law fender Center. of Charitable Institutions," at a Netherlands, in December. The at the University of Hawaii at Manoa symposium entitled "The Impact session produced a final text of Appointments: Named to the Ad­ in Honolulu, Hawaii, in March. the convention, which will be sub­ visory Committee of the National of Clergy Sexual Misconduct Liti­ mitted for ratification by the US Council of Juvenile and Family Other: Participated in a seminar gation on Religious Liberty," and other member states of the Court Judges for a project entitled entitled "Marbury v. Madison 200 sponsored by the Boston College conference. "Reentry Initiative: The Role of Years Later," at the Law School of Law Review and Boston College's the Juvenile Court." the Autonomous University of Church in the Twenty-first Century EVANGELINE SARDA Barcelona, Spain, in May, in con­ initiative, at BC Law in April. nection with a US Speaker and Associate Clinical Professor AVIAM SOIFER Specialist Grant awarded by the CARWINA WENG Professor Promotions: Promoted to associate US Department of State's Office of Assistant Clinical Professor clinical professor in March. Recent Publications: "The Jazz International Programs. Awarded Man." Legal Affairs 2: no. 2 a certificate of appreciation by the Work in Progress: "Cross-Cultural JOAN A. SHEAR (March/April 2003): 42--43. "Re­ BC Law Black Law Students As­ Lawyering: Teaching the Psycho­ sociation for his valuable contri­ logical Underpinnings." Legal Information Librarian thinking Fairness: Principled Legal butions to the association. and Lecturer in Law Realism and Federal Jurisdiction." Presentations: "Cross-Cultural New York Law School Law Re­ Lawyering: Teaching the Psycho­ Presentations: Co-presented "Library view 46: no. 1-2 (2002/2003) SUSAN C. SULLIVAN logical Underpinnings," at New Public Service Areas: Program and Uudge jon O. Newman: A Sym­ Legal Information Librarian York University School of Law, Design Issues," at the 2003 Bricks, posium Celebrating His Thirty and Lecturer in Law New York, New York, in Febru­ Bytes, and Continuous Renova­ Years on the Federal Bench and an ary. "Children and Domestic Vio­ tion Conference sponsored by the Occasion to Reflect on the Future Activities: Attended the fall 2002 lence," in connection with the American Bar Association Section of Copyright, Federal jurisdiction, and spring 2003 annual meetings of of Legal Education and Admis- and International Law): 29--42. the Law Librarians of New England. (continued on page 46)

34 BC LAW MAG AZ INE I SPRI NG I SU MM ER 2003 [ ESQUIRE ]

ALUMNI NEWS & CLASS NOTES

Year's Biggest Jury Verdicts

FIVE ALUMS WIN MILLIONS FOR CLIENTS

glimpse at the largest jury verdicts Weekly. The defendants in the in Massachusetts in 2002 reveals lawsuit were the hospital's head A a noteworthy trend: BC Law of pharmacy, a pharmacy tech­ alumni are well represented nician, and the supervising among the winning lawyers in these multi­ pharmacist. million dollar suits. Five alums were among The year's fifth largest ver­ the plaintiffs' attorneys whose cases made it dict, $7.1 million, was awarded onto Massachusetts Lawyers Weekly's "Top to an eighty-four-year-old man Ten Jury Verdicts." Included were two who entered Boston's Carney members of the Class of 1974, as well as Hospital for a minor bladder members of the Classes of '70, '78, and '86. operation and left with a punc­ tured colon, kidney failure, and "II'S GOOD AS a defendant's flesh-eating bacteria infection. Clyde D. Bergstresser '74, part­ lawyer to try-...J&...."""'-'""",-"b>.U. ___ ner at Boston's Campbell, Campbell, Edward & Conroy ~plaintiffs. You do represented the plaintiff. The award is believed to be the get a dee~iatjon for largest ever for an elderly med­ ical malpractice plaintiff in ~plaintiff's burden. " Massachusetts, according to the weekly. -PAUL]. MURPHY '82 Joan A. Lukey '74 won $4.2 The most recent graduate helped win million on behalf of a doctor the largest award. Anthony R. Zelle '86, a who sued the Boston Globe partner in the Boston office of Robinson & and the Dana Farber Cancer Cole, netted an $8.7 million verdict for a Institute for libel and wrongful group of clients who had been defrauded termination. The Globe had by Merrill Lynch and the investment firm misreported that the doctor Anthony Zelle '86 (I) and law partner William Nystrom recently Benistar Property Exchange Trust Compa­ had ordered the chemotherapy netted an $8.7 million verdict. ny, a qualified intermediary for tax­ overdose that killed Globe deferred real estate exchanges. A jury Paine Webber accounts held by Benistar reporter Betsy Lehman. Lukey, a senior found that Benistar had traded clients' Property Exchange. After three and half­ partner at Hale & Dorr, successfully money without authorization, and that weeks of trial, fourteen jurors unanimously argued that the newspaper's error led the Merrill Lynch knew that Benistar was concluded that Merrill Lynch had actual cancer institute to lay off the doctor. breaching its duty to its clients. The case, knowledge of Benistar's fraudulent scheme. In the year's ninth largest verdict, Paul J. argued in Suffolk Superior Court by Zelle The battle continues, however, because as Murphy '82 (and 1978 graduate of Boston and colleague William C. Nystrom, is we prepared for the punitive damages College) won $2.7 million-including $2 believed to be the first in which a court has phase of the trial, the court granted the million in punitive damages-for a handi­ held that a brokerage firm was liable broker's motion for judgment notwith­ cap-bias suit against Belmont Springs. "This through the collusion exception to UCC standing the verdict." was a rare stroll on the plaintiff's side for §8-15S. Charles R. Capace '70 of Kurnos, Capace us," notes Murphy of Menard, Murphy & "This was a very challenging case & Margolin helped win a $7.2 million Walsh, who says 99 percent of his practice because the UCC protects brokers from award on behalf of a four-and-a-half-month­ is management labor law. "But it's good as claims by third parties unless there is proof old child who suffered brain damage after a defendant's lawyer to try a case for the that the broker colluded with the account receiving a massive medication overdose plaintiffs. You do get a deep appreciation holder," said Zelle. "In our case, five indi­ while a patient at Boston's Children's Hospi­ for the plaintiff's burden, and it makes you viduals lost more than $9 million through tal. That verdict was the fourth largest of a better lawyer on the other side." stock option trading in Merrill Lynch and 2002, according to Massachusetts Lawyers - Michelle Bates Deakin

SPRI NG I SUMMER 2003 Be LAW MA GAZIN E 3S [E S Q U IRE]

Of Saints, Achievements, and Good Deeds

TRIBUTES PAID AT LAW DAY

he Boston College Law School TAlumni Association held its annual Law Day ceremonies April 29 at the Seaport Hotel in Boston. Honorees were Joan A. Lukey '74, Richard T. Colman '62, Sister Eleanor F. Martin '78, and Mary Beatty Muse' 50. The evening commenced with cocktails for the more than 350 atten­ dees, and proceeded with dinner and dessert during the program. "It's very strange to win an award named for a saint," remarked Lukey, recip­ ient of the St. Thomas More Award. "The The Law Day Award recipients with family and friends (clockwise from top left): Sister Eleanor F. Martin; Mary Beatty Muse with BC President William P. Leahy; Joan Lukey and daughter Heather; and Richard award is given to someone who embodies and Marilyn Colman. his qualities, and I find that overwhelm­ ing." Lukey, a senior partner in the litiga­ Board of Overseers. Probate Coutt and received the Distin­ tion department at Hale & Dorr LLP in The Honorable David S. Nelson Public guished Jurist Award from the Massachu­ Boston, has consistently been listed in The Interest Law Award went to Martin. She setts Association of Women Lawyers upon Best Lawyers of America. represents low-income clients in Kentucky retirement. "I am humbled and very pleased For his contributions to the Law School, and Massachusetts and established the first especially because it's named in honor of a Colman received the William J. Kenealy, domestic violence shelter in eastern Ken­ long-time friend," Muse said. S.]., Alumnus of the Year Award. "I felt sur­ tucky. "I accepted the award on behalf of "This event would not be possible with­ prised but greatly honored," said Colman. all legal service attorneys who have con­ out the continued generosity and support "The list of past recipients is very impres­ tributed to the public interest by making of scores of local law firms each year," said sive." Colman's track record is no less im­ access to justice possible for low-income Alumni Relations Director Linda Glennon, pressive. Retired as partner from Howrey, individuals," she said. noting the welcome addition of new spon­ Simon, Arnold, & White in Washington, The Daniel G. Holland Lifetime Achieve­ sors Baker & McKenzie of Chicago, Illi­ DC, he organized an alumni chapter there ment Award was bestowed upon Muse, one nois, and Howrey, Simon, Arnold & White and in Los Angeles when he was in their of the first women accepted to BC Law. She of Washington, DC. West Coast office. He sits on the BC Law served as associate justice of Suffolk County -Sarah Khan

36 Be LAW MAGAZINE I SPRING I SUMMER 2003 [ESQ U IRE]

BOOKSHELF

GENDER ON TRIAL: Sexual Stereotypes no intention of plateau," said English, of the current gen­ and Work/life Balance in the Legal writing "a big der profile of the legal profession. More Workplace whining book." than 50 percent of law school graduates (New York: Law Journal Press, a division of She proposed to are women, yet the female rate of attrition American Lawyer Media, 2003 ) sketch the con­ among young lawyers remains higher By Holly English '83 tours of the gen­ than that of men, and there is a pervasive der Is-sues feeling even among successful women of This book seeks to broaden the 'gender debate and then being "shut out at the top of the league." issues' debate so that it's an open forum give "concrete English hopes Gender on Trial will for men and women alike, seeking solu­ examples of spark debate on the next steps towards tions for working lawyers engaged in what males and creating legal workplaces that are truly puzzling out the dilemmas men and Holly English females do to free of gender bias. She also sees her women face working side by side, every meet these challenges." work as applicable to other professional day of the year. Although her initial brief was specifi­ settings: "These problems are not just -from the Preface to Gender on Trial cally to examine women's issues in legal confined to lawyers. The players hap­ workplaces, she soon realized that men pen to be lawyers, but the plot is pretty olly English knows from personal also struggle with gender stereotyping. She universal. " H experience how the landscape has broadened her scope to give a more "holis­ changed for women in the law over two tic and global" view of its negative impact WATER FOLLIES: Groundwater Pumping generations. She and her mother, Jerry on both sexes. and the Fate of America's Fresh Waters Fitzgerald English, were the first moth­ In the course of 180 interviews with (Washington : Island Press, 2002) er/daughter duo to receive degrees from lawyers from all over the country, 50 with By Robert Glennon '69 Boston College Law School, Jerry in '63 men and 130 with women, English identi­ and Holly in '83. fied eight clusters of related stereotypes, eginning with the greedy pursuit of Bnew sources of spring water by the bottled water companies, Robert Glennon, ALTHOUGH THE AUTHOR'S initial brief was to examine the Morris K. Udall Professor of Law and Public Policy at the University of Arizona, women's issues in legal workplaces, she soon realized that tracks the development of a virtually undocumented environmental catastro­ men also struggle with gender stereotyping. phe caused by excessive pumping of groundwater. Growing up in suburban New Jersey each of which forms the focus of a chapter. "This groundwater," he writes "is part in the 1960s, Holly English was acutely Moving through issues from dress codes to of a hydrologic cycle that provides fresh­ aware that her mother, a successful sexual harassment, from management water to lakes, rivers, and streams. attorney, had chosen a different path styles to the enduring divide between part­ Groundwater pump­ from most of her contemporaries. "Peo­ timers and full-timers, English allows her ing disrupts this ple were openly quite critical of her and subjects to speak for themselves and pre­ WATER cycle. It steals water her personal and professional choices," sents their oral history vignettes within FOLLIES from our rivers and English said recently in a telephone a conceptual framework derived from Groundwater Pumping and the lakes, but because it Fate of America's Fresh Waters interview from her home in Montclair, other research. does so very slowly, New Jersey. The book's final chapter presents a we don't notice the While researching Gender on Trial, model for change. English believes that effects until they are English found that the overt disapproval individuals can and do transform work­ ~"'''''':~ - disastrous. " faced by her mother's generation has place cultures in ways ranging from active­ Using examples - --~~~ been replaced by more subtle, insidious ly promoting flexible working schedules . - drawn from Maine forms of gender prejudice. "Everybody and practices to subtly altering their ROBERT G L ENNON to Arizona, he says the right things in public," she language. For example, reframing the chronicles the des- said, but under the surface old attitudes question, "What can we do about these iccation of rivers, springs, lakes, and wet­ linger, none the less powerful for being working mothers?" as "How can we lands, and the death of wildlife, trees, and unexpressed. help working parents?" promotes a shift shrubs, deftly interweaving the science of English, who has worked both as a in perception which in turn can lead to hydrology with his examination of the lawyer and journalist and now runs her positive action. legal aspects of water use and conflicts. own consulting firm, Values at Work, had "Obviously, we've hit some sort of -Jane Whitehead

SPR ING I SUMMER 2003 I Be LAW MAGAZINE 37 [ESQ U IRE]

Party Time Puttin' on the Ritz SEE OLD PALS AT REUNION 2003 DEAN RECOGNIZES COUNCIL'S ACHIEVEMENTS eunion Weekend 2003 will take Rplace September 19-21, with alum­ ni from classes ending in 3 and 8 invited to attend. The weekend kicks off Friday with a Boston Harbor cruise and continues Satur­ day with individual class dinners at the Boston Marriott Long Wharf. Festivities conclude with a brunch on Sunday for all classes. Rooms have been held at the Boston Marriott Long Wharf. Please call the hotel directly at 877-901-2078 to reserve. For more information on the reunion or if you'd like to participate on your reunion social committee, contact Linda Glennon, Dean John Garvey thanked Dean's director of alumni relations, at linda.glen­ Council donors with a reception at [email protected]. the Ritz Carlton June 3. The crowd You may also check the Reunion 2003 of 100 applauded the successes website for updated information at of Leadership Gifts Committee www.bc.eduflawreunion. Co-chairs Kevin B. Callanan '67 -Sarah Khan and Teresa Walsh '97.

(Clockwise from top left): William P. leahy, Supreme Court Kevin B. Callanan '67, Teresa Walsh '87, and John Garvey; J. Owen Todd '60, Owen Lynch Induction '59, and Robert J. Muldoon Jr. '65; Michael K. Fee '84, El izabeth Fee, and Ann Pauly '85. BC LAW ALUMNI SWORN IN

hirty-eight BC Law alumni were Sun Shines on BC Law T admitted to the US Supreme Court Bar in Washington, DC, at a cere­ FLORIDA FACULTY BAND TOGETHER mony in April. The weekend-long event included the play Capitol Steps, a private sightseeing he spirit of BC Law is thriving in Cane, who has been on the faculty at tour of the city, a welcoming reception TSouth Florida, according to Debra NSU for twenty years, says teaching is the with Dean John Garvey, and a meeting Moss Curtis '93, one of four Law "best career choice I ever made," and she with Supreme Court Justice Ruth Bader School alumni on the faculty at Nova credits the "incredibly positive attitude Ginsburg. Southeastern University Shepard Broad about law and teaching and learning" they Following Monday's induction, alumni Law Center in Fort Lauderdale. In what she all experienced at BC Law as the reason attended a luncheon on Capitol Hill hosted calls "surely an unusual situation," Curtis each chose teaching as a profession. by Senator John Kerry '76. and her Boston colleagues comprise nearly Dale says the four of them band togeth­ This is the sixteenth year that the Law 10 percent of the Florida school's faculty. er at faculty meetings, and they joke about School has sponsored the ceremony, which Curtis is an assistant professor specializ­ boycotting NSU graduation ceremonies grants attorneys the right to argue cases ing in UCC work and law office manage­ because the university's regalia colors are before the Supreme Court. All qualified ment. Professor Michael J. Dale '70 is a those of former rival Boston University. law alumni are eligible. children's rights scholar, and Professor "We consider ourselves to be a force to be For more information, please contact Marilyn Cane '74 teaches corporate securi­ reckoned with" at NSU, laughs Arcabasio, Linda Glennon, director of alumni rela­ ties and banking. Associate Professor adding that they are "always looking for tions, at 617-552-3935 or linda.glen­ Catherine Arcabasio '87 focuses on crimi­ BC Law grads to bring in." [email protected]. nal procedure. -Deborah]. Wakefield -Sarah Khan

38 Be LAW MAG A Z IN E SPRI N G I SUMMER 2 0 03 [E S Q U IRE]

All the World's a Stage

PERLBERG PLAYS IT HIS WAY

uring law school, Mark C. Perl­ departed for John H. Harland Company in to let his ability to argue well stand in his berg '81 was dead set on becom­ Atlanta, Perlberg decided to leave New Jer­ way. "Sometimes people in your organiza­ Ding a litigator. He loved the dra­ sey and join that company, too. He worked tion have important things to say, and if ma of it, and he'd learned to there for four years, before joining PRG­ you naturally shift to winning the argu­ command an audience while performing in Shultz in 2000. ment, you don't hear them," says Perlberg. theater in college. So, he was the last one "I had never heard of the concept of Perlberg married his college sweetheart, who would have predicted he'd embark on audit recovery," recalls Perlberg. "But Diane, whom he met at the University of a career in international business and leave when someone explained it to me, I Rochester. A graduate of New York Uni­ the courtroom far behind. thought, 'Hmmm. That's a business that versity Law School, she's also a non-prac­ In August, Perlberg was named presi­ sounds interesting.' I was intrigued that it ticing lawyer, working in career counseling dent of Atlanta-based PRG-Shultz Inter­ was still run by its founding entrepreneur at Emory University School of Law. They national, a $475 million company with and that one-quarter of its business was have three children, aged twenty, sixteen, 3,500 employees doing business in more outside the US." and twelve. than forty countries. Seven months earli­ Though he travels more than 50 percent er, he had been named COO of the pub­ Curbing the Lawyerly Impulse of the time, visiting PRG-Shultz offices and licly traded company, the leader in the Although he hasn't practiced law in four­ clients around the world, Perlberg does recovery audit industry. PRG-Shultz helps teen years, Perlberg values the logical carve out time for his old passion. He's a major retailers and manufacturers find framework it gave him. "I'm dealing with board member of Atlanta's Alliance The­ lost profits due to overpayments or lost changing circumstances all the time, and atre, a pursuit that harks back to his under­ deductions. what I learned about how to think through graduate pursuits and his days at BC Law "You never know what the future will legal problems is very relevant." At the acting in the Bar Revue. bring," says Perlberg, repeating a message same time, he says, he has to be careful not -Michelle Bates Deakin he shared in a talk to BC Law students in March. "I had been pretty single-minded that I wanted to be a litigator, but there were a lot of things out there I'd just never been exposed to."

Shifting Gears Perlberg did work as a litigator for eight years in New Jersey, first with Riker, Danzig, Scherer, Hyland & Perretti, and then with a small firm, Margolis Chase. He found, however, that he was interested more in the business aspects of his cases than the litigation itself. At the same time, Perlberg was helping a friend launch a new business, trading legal services for a stake in the new company, which processed cash payments to utility compa­ nies. The company boomed, growing to $20 million in revenue in three years. In 1989, that company was acquired by Western Union, and Perlberg faced a major career decision. He decided to leave the law and cross into the business world for good. During his stint at Western Union, he rose to oversee the company's business in Latin America. "I really enjoyed dealing with all the different coun­ tries and trying to apply business concepts in new environments," says Perlberg. Sh ifting from litigation to international business means learning to listen and curbing the impulse to When the CEO of Western Union w in every argument. says Mark Perlberg.

SPRI NG I SUMMER 2003 I Be LAW MAGAZINE 39 40 Be LAW MAGAZINE I SPRI NG I SUMMER 2003 [ESQUIRE] Class Notes

Compiled and Edited by Deborah J. Wakefield

We gladly publish alumni news a partner at Kurnos, Cap ace & 2003-2004 edition of The Best and photos. Send submissions to Margolin LLP in Boston. Lawyers in America. A partner BC Law Magazine, 885 Centre and the head of the matrimoni­ St., Newton, MA 02459-1163, James H. Belanger'72 joined the al department in the Bridgeport, or email to [email protected]. Boston firm Burns Connecticut, firm Cohen & & Levinson LLP as Wolf, P.c., he is the author of a partner and a Fighting for Your Children: A 195 Os [REUNION'53 & '58 ] member of the Father's Guide to Custody; In­ corporate and in­ side Women's College Basket­ Gilbert L. Wells' 58 is serving his tellectual property ball: Anatomy of a Season; and twelfth year as an IRS volunteer groups. He was formerly a part­ Inside Women's College Basket­ at the US Embassy in Lisbon, ner at Peabody & Arnold LLP ball: Anatomy of Two Seasons. Portugal, where he assists Por­ in Boston. He lives with his wife and tuguese clients who worked in two daughters in Westport, the US and subsequently re­ Paul F. McDonough Connecticut. turned to Portugal to retire on appointed to the social security pensions. Boston Finance Terence A. McGinnis '75 was Commission by elected chair of the board of Massachusetts trustees of the North Shore Med­ Governor Mitt ical Center in Salem, Massachu­ Romney in February, setts. He is assistant general and he was elected vice chair of the counsel with FleetBoston Finan­ Philip J. Callan Jr. '64 was reap­ Boston Civic Design Commission. cial Corporation in Boston. pointed Massachusetts state chair He is a partner and the director of of the American College of Trial Goulston & Storrs in Boston and Steven C. Nadeau '77 was se­ Lawyers. He is a partner at Do­ practices in the areas of real estate lected for inclusion herty, Wallace, Pillsbury & Mur­ financing and development. in the 2003-2004 phy, P.C., in Springfield, Massa­ edition of The Best chusetts. He and his wife, Doris, Clyde D. Bergstresser '74 was Lawyers in Ameri­ have three children and live in featured in a "Top Ten Jury Ver­ ca. He is a partner Longmeadow, Massachusetts. dicts of 2002" article in the in the environmen­ Massachusetts Lawyers Weekly. tal department at Honigan, Alan S. Goldberg '67 is a part­ A partner at Campbell, Camp­ Miller, Schwartz & Cohn LLP in ner in business law at the Wash­ bell, Edwards & Conroy, P.c., in Detroit, Michigan. ington, DC, office of Goulston Boston, he focuses on complex & Storrs. He was the event mod­ medical and professional mal­ erator and a lecturer for "HIPAA Michael D. Roth '77 was elect­ practice and negligence matters. for Real People-the Series," an ed to the board of directors of American Bar Association audio the Pacific Southwest Council of conference; he directed a semi­ Michael B. Isaacs the Union of American Hebrew nar entitled "HIPAA Track" at '74 was named the Congregations, the central body the LegalTech Show in New first executive di­ of the Reform Jewish Movement York City, in January; and he co­ rector of the Island in North America. A practicing chaired the Sixth National Association of De­ health care law attorney in Los HIPAA Summit in Washington, fense Trial Counsel. Angeles, California, he is presi­ DC, in March. He is co-author dent of the California Depart­ of "Protecting Privacy When Us­ Joan A. Lukey '74 was featured ment of Consumer Affairs Struc­ ing Telehealth Technology in in a "Top Ten Jury Verdicts of tural Pest Control Board and a Healthcare," a publication ref­ 2002" article in the Massachu­ member of the board of directors erenced at http://tdrt.aticorp.org. setts Lawyers Weekly. She is of the Stephen S. Wise Temple. a partner at the Boston firm of Hale & Dorr and specializes Glenn M. Wong '77 is the author 1970s [R'73EUN &ION'78 ] in the areas of employment de­ of Essentials of Sports Law, pub­ fense and plaintiffs' personal lished by the Greenwood Pub­ Charles R. Capace '70 was fea­ injury/wrongful death. lishing Group. He is a professor tured in a "Top Ten Jury Verdicts of sports law and labor relations of 2002" article in the Massa­ Richard G. Kent '75 was select­ at the University of Massachu­ chusetts Lawyers Weekly. He is ed for inclusion III the setts, Amherst.

SP RI NG I SUMME R 2003 I Be LAW MAGAZINE 41 [ESQ U IRE]

James A. Aloisi '78 joined man as a partner in the firm's William J. Hanlon '87 was ap­ [ CITATIONS Goulston & Storrs in Boston as Washington, DC, office. He was pointed co-chair of the Boston a partner in the firm's trans­ formerly with Mintz, Levin, Bar Association Bankruptcy ALUMNI IN THE NEWS portation practice. Cohn, Ferris, Glovsky & Popeo, Law Section. He is a member of P.e., in Washington, De. Schnader, Harrison, Goldstein J. Owen Todd '60, Louis P. Frances Allou Gershwin '79 & Manello in Boston. joined the Boston James M. Kennedy '84 was Aloise 75, and John A. Taranti­ firm Burns & Lev­ named senior vice president of Rebecca S. Webber '89 was se­ no '81, named "Lawyers of the inson LLP as of business and legal affairs at lected co-chair of Year 2002" by Massachusetts counsel. She is a THQ, Inc., a worldwide devel­ the Women's Law Lawyers Weekly. member of the real oper and publisher of interactive Section of the Andrew L. McElaney Jr. 70 estate group and entertainment software based in Maine State Bar and Robert B. practices real estate, business, Calabasas, California. Association. A Remar 74, elect­ and corporate law. She and her freq uent lecturer husband, Stan, live in Chestnut Mark C. Michalowski '85 was on issues of employment law ed fellows of Hill, Massachusetts. appointed executive partner in and litigation practice, she also the American the Boston office of Holland & teaches an adult education College of Trial Knight LLP, where he practices class on employment law issues Lawyers. in the area of commercial for small businesses. She is a 80s [ REUNION ] litigation. partner at Linnell, Choate & Harold Damelin 72, confirmed 19 '83 & '88 by the US Senate as inspector Webber LLP In Auburn, David Perkins '85 is president Maine. general of the US Small Busi­ Joseph T. Hobson '81 heads the J. of Perkins Olson in Portland, ness Administration. criminal law section of McFar­ land, Gould, Lyons, Sullivan & Maine, and focuses his practice William D. Metzger 72, new Hogan in Clearwater, Florida. on business transactions, bank­ I 0S associate dean of admissions, He and his wife, Pam, have three ruptcy, and complex litigation 99 [REUNION'93 & '98 ] alumni affairs, and career ser­ children. involving commercial and secu­ James J. Rooney '91 joined vices at Western New England rity law and maritime and envi­ ronmental issues. His article on the Buffalo, New College School of Law in Paul]. Murphy '82 was featured "Section 363 Sales" was pub­ York, office of Springfield, Massachusetts. in a "Top Ten Jury Verdicts of 2002" article in the Massachu­ lished in the Portland Press Her­ Bond, Schoeneck Paul B. Smyth 74 received the setts Lawyers Weekly. He is a ald in March. & King PLLC as Presidential Rank of Meritori­ founding partner of Menard, senior counsel in ous Executive Award as acting Murphy & Walsh LLP in Boston David E. Surprenant '85 was the firm's labor associate solicitor for the Divi­ and practices in the areas of elected managing and employment law practice. He was formerly a partner at Lu­ sion of Land and Water Re­ business litigation, labor rela­ partner in the busi­ cash, Gesmer & Updegrove LLP sources in the US Department tions, employment law, and ness department at Mirick O'Connell in Boston. of the Interior during the first construction. in Worcester, Mass­ year of the Bush administration. Col. Mark Romaneski '82 grad­ achusetts. He is Kristine E. George '92 opened Daniel F. Polsenberg '82, uated from the US Army War chair of the board of the United her own firm, providing legal re­ elected fellow of the American College in Carlisle, Pennsylva­ Way of Central Massachusetts search and writing services for Academy of Appellate Lawyers. nia, in June 2002 with a master's and a member of the board and attorneys in litigation and ap­ degree in strategic studies. He is the executive committee of pellate matters. She and her hus­ John P. Winn '86, appointed the commander of the US Army Catholic Charities Worcester band, Pietro Andres, have two judge of the Sacramento (Cali­ Claims Service in Fort Meade, County. children and live in San Francisco, fornia) Superior Court. Maryland. California. Marta D. Masferrer '86 contin­ Meg Mahoney '88, appointed Holly English '83 is the author ues her practice as a labor and Anthony D. Rizzotti '92 and Jill judge of the Maricopa County of Gender on Trial: Sexual employment lawyer representing Huban Rizzotti '95 announce (Arizona) Superior Court. Stereotypes and Work/Life Bal­ employers. She and her husband, the December birth of a son, Luke Anthony, whose arrival Anne Robbins '92 and Chris­ ance in Legal Workplaces. She is Manuel Fernandez, have two children and live in San Juan, was also welcomed by his big tine M. O'Connor '00, honored the founder of Values at Work, a law firm consulting practice fo­ Puerto Rico. brother, Peter David. by Boston Bar Association's cusing on law office manage­ Volunteer Lawyers Project for ment issues and the alignment of Anthony R. Zelle '86 was fea­ Brigida Benitez '93 is president­ contributions to pro bono civil values and ethics within organi­ tured in a "Top Ten Jury Verdicts elect of the His­ lega I services. zations. She and her husband, of 2002" article in the Massa­ panic Bar Associa­ James B. Eldridge '00, only Fred Smagorinsky, and their chusetts Lawyers Weekly. He is tion of the District 2002 Clean Elections candidate two daughters live in Montclair, a partner in the Boston firm of Columbia. She to win seat in the Massachu­ New Jersey. Robinson & Cole LLP and con­ is a partner at centrates his practice on com­ Wilmer, Cutler & setts House of Representatives. Richard M. Graf '84 joined the plex litigation, primarily in Pickering in Washington, DC, national corporate practice of the representation of insurance where she has an appellate and Katten, Muchin, Zavis & Rosen- company clients. trial litigation practice.

42 Be LAW MAGAZINE I SPR ING I SUMMER 2003 [ESQUIRE]

Mark J. Hoover '93 is a volun­ ship," a Massachusetts Bar As­ teer docent on art, sociation Continuing Legal Edu­ architecture, and cation seminar in February. She federal law in the organized and moderated "Cul­ Stay in Touch public education tural Considerations in Divorce outreach program, and Child Custody Matters," a Please send your news by "Discovering Jus­ panel discussion sponsored by tice: The James D. St. Clair the Boston Bar Association Fam­ October 27, 2003, for the Court Education Project," at the ily Law Section and the Asian FallIWinter issue . John Joseph Moakley US Cour­ American Lawyers Association thouse in Boston. He is a part­ of Massachusetts in April. Fax: 617-552-2179 ner at Campbell, Campbell, Ed­ Email: [email protected] wards & Conroy, P.c., in Christopher M. Cerrito '96 us mail: 885 Centre Street Boston. joined the Stam­ ford, Connecticut, Newton, MA 02459-1163 Donald J. Savery '93 was office of Edwards elected partner in & Angell LLP as an the litigation sec­ associa te in the Ca reer tion of the Bos­ firm's private equi­ ton firm Bingham ty and corporate practice groups. McCutchen LLP. C. Quinn Lopez '96 was named general counsel to the superin­ Barbara H. Pope '94 is an ad­ tendent of the State of New Mex­ Personal ministrative attorney at the ico Division of Insurance III Massachusetts Superior Court. Santa Fe, New Mexico. She and her husband, Tom Morse, have two children. David M . Belcher '97 and Michael J. Starr '97 founded the Christa von der Luft '94 was firm of Belcher, Kerwin & Starr elected partner of LLP in Boston. Belcher, former­ Name the Boston firm ly with Goodwin Procter LLP in (first) (last) (maiden, if applicable) Nutter, McClen­ Boston, practices corporate law. nen & Fish LLP Starr, formerly with Taylor, Gan­ Firm/Business and practices in the son & Perrin LLP in Boston, areas of employ­ practices in the areas of estate Business Address ment and product liability litiga­ planning and real estate. (street) tion. She lives with her husband, Matthew Poppel, in Boston. Laurie Hauber '97 and her hus­ (city) (state) (zip) band, Ed, announce the birth of Scott C. Ford '95 was promoted a son, Aiden, in November. She Title Phone to partner in the litigation sec­ manages the Economic Justice tion at Mintz, Levin, Cohn, Fer­ Project of the Lawyers' Com­ ris, Glovsky & Popeo, P.c., III mittee for Civil Rights under Email Cl ass year Boston. Law of the Boston Bar Associa­ tion in Boston. Formerly, she Brian P. Keane '95 was promot­ was an associate at Cooley Address change? o yes o no ed to partner in the business and Godward LLP in San Francisco, finance section at Mintz, Levin, California. Cohn, Ferris, Glovsky & Popeo, P.c., in Boston. Annica H. Jin '97 joined the o Pl ease chec k here if you do not want your news in Manhattan firm of Weg & My­ Esq uire, the alumni class notes section. Andrea Lomita Levine '95 and ers, P.c., as an associate. She and her husband, Larry, announce Kelly Hendel are the proud par­ the birth of their first child, ents of a daughter, Annabelle, In the magazine, I would like t o rea d more about David Solomon Levine, in De­ born in January 2002. cember. She is a real estate attorney in Westchester, New York. Fernando Ramos '97 and his wife, Andy Diaz-Ramos, an­ Ingrid C. Schroffner '95, an as­ nounce the birth of their daugh­ sociate in the Boston firm Burns ter, Inelda Marlenis, in August & Levinson LLP, was program 2001. He is a special agent with materials co-author and a speak­ the US Department of Housing er at "Strategies and Tactics in and Development in the Office Guardianship and Conservator- of the Inspector General. He is

SPRI NG I SU MMER 2003 I Be LAW MAG AZ IN E 43 [ESQ U IRE] also a reserve special agent and corned their first child, Owen women involved in initial for­ Shelagh C. Newton Michaud '00 a member of the joint terrorism Murphy Coppinger, in July 2002. mation with the Sisters of St. is an associate in the litigation task force of the US Coast Joseph of Boston. The process department of Devine, Millimet Guard. Jennifer L. Nye '98 joined the takes several years and leads to & Branch P.A., in Manchester, Arizona Center for Disability a lifelong vowed commitment. New Hampshire. Previously, she Joseph M. Barich '98 was elect­ Law in Tucson, Arizona, as a She was a former assistant to was a litigation associate in the ed partner at McAndrews, Held staff attorney on the mental the executive director of the Boston firm of Testa, Hurwitz & & Malloy in Chicago, Illinois, health team. Formerly, she Irish Immigration Center in Thibeault LLP. She and her hus­ where he focuses on the devel­ taught in the Department of Boston and practiced immi­ band, Michael, live in Manchester. opment of patent portfolios Women's Studies at the Univer­ gration law at Pampanin for revenue generation and sity of Arizona and practiced Law Offices in Cambridge, Craig F. Kowalski '02 is an as­ cross-licensing. family law at Southern Arizona Massachusetts. sistant district attorney in the Legal Aid in Tucson. Norfolk County (Massachu­ David Colleran '98 joined the le­ setts) District Attorney's Office. gal team at Ocean Spray Cran­ Deirdre Griffin '99 entered the 2000s He and Rebecca Stronach mar­ berries, Inc., in Lakeville-Mid­ Sisters of St. Joseph ried in September and live III dleboro, Massachusetts. He and Federation Canon­ Woburn, Massachusetts. his wife, Rose, have a daughter, ical Novitiate in Au­ Jessica P. Lamiero '00 joined Madison, born in April 2002. gust. In addition to Carroll, Burdick & McDonough IN MEMORIAM participation in the LLP in San Francisco, Califor­ Philip F. Coppinger '98 and novitiate program, nia, as an associate in the firm 's Herbert D. Flynn '40 Larissa E. Murphy '98 wel- she is one of four Boston-area product liability group. Neil A. Clark '85

A Legal Cross to Bear Faculty Profile: Mark Brodin Moe [Tandler], a community practice and civil rights lawyer, Brodin knew he wanted (continued from page 25) (continued from page 27) to be an attorney. He also admired the intellectual rigor of his law professors, outrage-and jury awards-in lesser cases confesses to having been terrified of public among them Michael Meltsner, and aspired such as that of the Colorado pastor. speaking in his youth. "I was phobic in law to teach one day himself. Garvey also notes that most of the cases school [at Columbia] about being called As luck would have it, Brodin got both now making their way into the courts on," he admits. Famous among his stu­ his wishes. "There's tremendous excite­ involve incidents that came before the early dents for his class preparedness, Brodin ment in engaging in dialog with students," 1990s, when Catholic bishops began to set says the habit was motivated by fear. "A he says, "and seeing how dramatically their standards and protocols for handling response to fear is often to attempt to exer­ analytical abilities and perception of legal abuse. cise control over what you can, and what I issues develop." "The bishops are doing a better job of can control is the level of preparation and Says Ainbinder, "He's exactly what a screening priests before ordination and knowledge and confidence I have when I law professor should be." monitoring them afterwards," he says. go into class." - Vicki Sanders "We're still unsure what kind of liability Students describe Brodin as supportive rules will apply to cases after the 1990s, and passionate about his subjects (he Atoning for Slavery and what standard of proof the courts teaches Evidence and Employment Dis­ will apply." crimination Law in addition to Civil Pro­ (continued from page 12) But there is no doubt that whatever the cedure). They say he has a knack for future brings, religious leaders face a chal­ untangling complicated material. "Some­ an answer for "the voiceless, faceless, lenging new world, one that no longer times you read and you are so confused powerless Africans" who were thrown offers blanket protections from the laws and then you go to class and afterward overboard on their way to America hun­ of the state and the lawsuits of victims. you think, 'How could that have been con­ dreds of years ago or buried in Carmella believes civil and religious lead­ fusing to me?" says Ainbinder. "His Evi­ unmarked graves or killed fighting in the ers will find a middle ground. "It is inap­ dence class is packed, because you know Civil War. Yes, he acknowledged, the propriate for the church to wrap itself in you'll get Evidence, that you'll be able to legal and technical difficulties of court­ the First Amendment, but that doesn't use it forever." room-based reparations for slavery are mean the First Amendment is gone," she Brodin often uses anecdotes when formidable but, as the ongoing Tulsa says. "There is still broad freedom for the explaining procedures to students. "I try to litigation demonstrates, they may not be church to get its own house in order." implant a memory so when they retrieve insurmountable. the memory they'll also remember the Fred Bayles, the New England bureau important point," he explains. Michael O'Donnell is editor in chief chief for USA TODAY, has covered the crisis From the time he was eleven and of the Boston College Third World Law in the Catholic Church during the past year. inspired by his "bigger than life" Uncle Journal.

44 Be LAW MAGAZINE I SPRI NG I SUM MER 2003 Scholar's Forum international condemnation. On the other primarily by asking whether it is effective hand, the outcome of negotiations on a strictly as an instrument of US foreign (continued from page 26) second resolution, as demonstrated by policy without regard for the concerns of of the North Atlantic Treaty for the first subsequent events, was uncertain at best. other states. The United States govern­ time in history by declaring those events The President's warning that the Council ment was prepared to use the UN's insti­ an "armed attack." "risks irrelevance" by failing to authorize tutional mechanisms to its advantage in A skeptic might observe that this is what the "coalition of the willing" had the first Persian Gulf war, but it has been just an example of "might makes right," already decided upon may have been a all too ready to turn its back when things but that would be correct only up to a cogent expression of realpolitik. But from do not appear to be going its way. point. That point is general acceptance by the community of states. An elastic AS TIMES AND THE NEEDS of glohaLsociety chang,~e,>------__ interpretation of the law in response to the terrorist strikes of September 11 international law can and does evolve, but not always in seems to have enjoyed widespread, if not necessarily universal, support. By con­ ways that are responsive to one state's, even a superpower's, trast, significant portions of the rest of the world, both governments and the short-term interests. public, at present appear to disagree with President Bush's extension of the a legal point of view, and in the eyes As times and the needs of global society notion of self-defense to encompass of much of the rest of the world, the change, international law can and does unprovoked preemptive strikes in Iraq United States had gotten it backwards. evolve, but not always in ways that are and possibly elsewhere. Regardless of the technical arguments responsive to one state's, even a super­ The Bush Administration's decision about the need for a second resolution, power's, short-term interests. While we in the autumn of 2002 to seek Security the Administration's actions communicated might be able to avoid the immediate Council approval for an invasion of Iraq an unfortunate disdain for the multilateral consequences, is it genuinely in our long­ represented a modest success for princi­ process and, by implication, for the opin­ term interest to risk disrupting the sense ples of multilateralism. While the Coun­ ion of the rest of the world. of stability provided by international law? cil's November 2002 resolution got The Bush doctrine of preemptive self­ One only need think of the Asian weapons inspectors back into Iraq, it defense shares a critical feature with seem­ subcontinent, where both India and Pak­ stopped short of explicitly authorizing ingly compassionate theories such as hu­ istan both now have nuclear capabilities, armed force, instead threatening unspeci­ manitarian intervention. These unilateral to appreciate the potentially corrosive fied "serious consequences" without the doctrines can be invoked by a single state, effect of widespread acceptance of an "all necessary means" formulation used acting in a self-judging mode, with little or expansive doctrine of preemptive self­ in 1990 to approve the forcible expulsion no input from other countries. While such defense. The international power of the of Iraq from Kuwait. unilateral excursions may be motivated by United States rests as much on a global While the UN weapons inspectors pro­ benign or even desirable policy purposes, perception of legitimacy as on military ceeded to dig for information that might when seen through the lens of the UN muscle and economic might. Can we or might not justify subsequent Security Charter, they are inherently suspect be­ genuinely predict the costs of allowing Council approval of the use of force, the cause of their potential to trigger a spiral ourselves, rightly or wrongly, to be per­ Bush Administration argued that the case of armed conflict. ceived not as a nation of principle but for an attack had already been made. The Although international law may not as unpredictable adventurists? US decision to seek a second resolution be a reliable predictor of actual state became a moment of truth for principles behavior, respect for legality has consid­ David Wirth is a professor of law and of multilateralism. To attack Iraq without erable legitimizing force. But the United the director of international programs at clear backing from the Council risked States has too often evaluated the UN Boston College Law School.

Behind the Columns munity about domestic violence issues, and more conservative Federalist Society. I could to establish a network of law students to go on at more length, but you get the idea. (continued from page 3) volunteer in local shelters and other domestic I have not dwelt on racial diversity, violence advocacy-related areas. The Public but it is obviously on my mind. I have tional Law Society and the Jewish Law Interest Law Foundation (PILF), twenty years wanted to make the point that different Students Association invited Tal Becker, old next year, promotes the placement of law groups of like-minded students, if present legal advisor to the Permanent Mission of students with public interest firms and agen­ in sufficient numbers, can contribute a Israel to the UN, to talk about terrorism in cies. PILF provides summer grants to stu­ lot to the business of education. It is Israel. The BC Law Democrats encouraged dents who would not otherwise be able to entirely proper for schools to pursue students to get involved in the Massachu­ afford to work in these traditionally low­ students who will make that contribu­ setts gubernatorial election. salaried areas (see page 5). The American tion. And racial diversity contributes to The Domestic Violence Advocacy Project Constitution Society for Law and Policy was the mixture in ways essentially similar to was formed to educate and advise the com- formed in 2001, partly in reaction to the other differences that we value.

SPR ING I SUMMER 2003 I Be LAW MAGAZ INE 45 Academic Vitae tal Cooperation of North Ameri­ ternational and comparative envi­ Industry's Mistakes," in connec­ ca, 219-268. Montreal: Pub­ ronmental policy and law. tion with "Copyright and Fair (continued from page 34) lished for the Commission by Edi­ Use: Present and Future tions Yvon Blais, 2003. "Interna­ ALFRED C. YEN Prospects," a symposium at Har­ tional Law." " International vard Law School, Cambridge, Women's Bar Foundation Family Professor Court of Justice." "Territorial Massachusetts, in March. A lead Law Project in March. "Working Sea." In Dictionary of American Work in Progress: "What Federal commentator at a session entitled with Language Interpreters," at History, Stanley I. Kutler, editor­ Gun Control Can Teach Us "Lacan, the Self, and the Law: the Association of American Law in-chief, vol. 4: 393-395, about the DMCA's Anti-traffick­ Exploring the Normative Conse­ Schools Workshop on Clinical Le­ 387-388, vol. 8: 93. New York: ing Provisions," a working paper quences of Fragmentation and gal Education, Vancouver, British Charles Scribner's Sons, Thom­ (available online at http://pa­ Desire" at the Second Joint Con­ Columbia, Canada, in May. son, Gale, c2003. pers.ssrn.comlsoI3/pa pers.dm? a b ference of the Asian Pacific Activities: Attended the Second stract_id=388081 ). American Law Faculty and the Presentations: "Development of Joint Conference of the Asian Pa­ Western Regional Law Teachers the Climate Change Legal Regime Presentations: "What Federal Gun cific American Law Faculty and of Color, Seattle, Washington, in from Rio to Kyoto," at a confer­ Control Can Teach Us about the the Western Regional Law Teach­ March. ence entitled "Common but Dif­ DMCA's Anti-trafficking Provi­ ers of Color, Seattle, Washington, sions," a facu lty colloquium pre­ in March. ferentiated Responsibilities in the A FOOTNOTE Protection of the Global Climate," sentation at Suffolk University Law School, Boston, and at Case Appointments: Elected chair of the sponsored by the International Charles M. Pepper, who served the Western Reserve University School Women's Bar Association Pro Center for Environmental Com­ Law School from 1962 to 1984 as of Law, Cleveland, Ohio, in Feb­ Bono Committee. pliance Assessment, at Kagawa Registrar, died on April 6, 2003. ruary; a lecture at Seattle Univer­ University, Takamatsu, Japan, in As Dean John Garvey remembers, sity School of Law, Seattle, Wash­ DAVID A. WIRTH December. "Not long ago, Charlie was our ington, in March; and a panel pre­ entire Academic Services staff­ Professor Activities: On-site director of the sentation at the International In­ carrying in his mind and the stack BC Law London Program for the Recent Publications: "Precaution dustrial Organization Conference of index cards he seemed always spring semester. in International Environmental at Northeastern University, to have on hand, all of the crit­ Policy and United States Law and Appointments: Named a founding Boston, in April. ical information about courses, Practice." In North American En­ member of ECOSPHERE, an in­ Activities: Moderator of a panel grades, and schedules. He was a vironmental Law and Policy [v.) ternational nonprofit association entitled "An Evaluation of Movie truly Dickensian character, about 10, prepared by the Secretariat of in Brussels, Belgium, dedicated to Industry Strategies to Combat whom many of us have stories the Commission for Environmen- research and policy analysis on in - Piracy: Learning from the Movie to tell."

In Closing Is Sovereignty the Issue? change their views. US citizens occasionally see the benefits (continued from page 48) (continued from page 12) of international ties, such as wartime alliances and fair treatment of POWs. They from racial profiling in the cities to voter The Power of Self-interest also see the damage to US interests when inequity in the rural South. Most impor­ But while Kanstroom is impressed with other countries won't play ball, as when tant, blacks today are just beginning Aleinikoff's sovereignty argument, he Turkey wouldn't allow troops to pass to enjoy the educational opportunities also suspects that much of the public dis­ through during the Iraqi invasion, or when their parents and grandparents only comfort with international law stems countries refuse to extradite criminals dreamed of. Can they honestly compete from simple self-interest. That is, Ameri­ America wants. with the children of plenty for whom cans usually reject the legitimacy of laws Ryan suggests that how countries per­ law school is more a matter of where made by international organizations ceive the US's response to international law or when than if? Affirmative action programs are inher­ AMERICANS IISIIALIY REJECT the legitimacy of laws ently unfair to whites, and they do pro­ vide benefits many blacks find unneces­ made by international organizations because they sary and degrading. Yet the alternative-a don't like the l~~ not because they dispute the legitimacy return to the de facto segregated higher education of yesteryear-would be, quite of the law-makin~t-L'-"~-o.J.L.l~ ______simply, worse. Hence the Supreme Court's balancing test under the Equal Protection because they don't like the laws, not influences their own actions. For example, Clause of the Fourteenth Amendment is a because they dispute the legitimacy of the Secretary of State Colin Powell has warned choice between evils. Diverse universities law-making process. that the Guantanamo Bay detentions have with the baggage of inequity versus homo­ Allen Ryan, who teaches "The Law of undermined US efforts to gain cooperation geneous universities with the benefit of War" at BC Law, says Americans need to in the fight against terrorism. theoretical rectitude. take a long-range view of the world and Once Americans understand that, Ryan Sitting in class, contemplating an realize that they gain more from interna­ says, they will realize the potential recipro­ affirmative action debate with 100 other tionallaw than they lose from it. He thinks cal harm to the US of boycotting the ICC white kids, the choice for me was clear: self-interest may be a stronger argument and like actions. give me diversity. than sovereignty in persuading people to -David S. Bernstein

46 BC LAW M AGAZINE I SPRI NG I SU MMER 2003 Filled with Pride

SPRING f SUMMER 2003 Be LAW MAGAZINE 47 [ I N CLOSING]

Lessons from the Classroom

A law student ponders the lesser of two evils in the affirmative action debate, but there's no doubt about what real life teaches.

by M ic h ae l O· D on n ell ·04

f only Justice Sandra Day O'Connor-the Supreme Court's swing voter-could have been sitting next to me in Constitutional Law class last November. The pro-affirmative action defendants in Grutter v. Bollinger would've had it made. My fellow students and I spent the class debating the merits of university

affirmative action programs under the Equal protec-I support for affirmative action in legal education by tion Clause of the Fourteenth Amendment. It was an those who stand to lose the most if programs like excellent discussion, partly because of what was Michigan's are eliminated. Nearly 14,000 law stu­ said, but more because of dents signed-and their con­ who said it. There were viction is well-founded. It is black students who the product of daily experi­ weighed in on both sides ences in the classroom like my of the issue. Several Indian­ own that day in Con Law. American women spoke, The most powerful rhetori­ one of whom was strongly cal argument advanced in in favor of affirmative support of the plaintiffs, white action. A Pacific Asian­ applicants who were denied American student admission to Michigan's law denounced the use of racial school and undergraduate quotas. A Latino support­ college, is that the Constitu­ ed them. And throughout, tion was intended to be, and I repeatedly thought how must remain, color-blind. hollow an experience the Affirmative action has had its hour would have been if day, they say: slavery is long all the students had been gone, the schools have been white, like me. desegregated for nigh on fifty The Supreme Court, in years, and race should simply deciding the University of no longer be an issue. Besides, Michigan affirmative ac­ affirmative action is unfair to tion cases, has been forced innocent whites like Barbara to grapple with just such a Grutter, and it is nefarious to possibility. The Court faced a question that has the long-term interests of blacks, who are demeaned vexed universities, litigators, and legal scholars since and coddled by its favors. the Court's first, deeply divided decision on universi­ Despite the intellectual appeal of the color-blind ty affirmative action in 1978. Namely, how impor­ Constitution argument, it utterly ignores the status tant is diversity? of race relations in contemporary America. Many Law students have the answer: diversity is ab­ black law students today are the first in their fami­ solutely critical. An amicus brief written by students lies to have completed college, let alone to have at Georgetown Law Center made its way to more entered graduate school. The badges and incidents than two-thirds of the nation's law schools last of slavery and Jim Crow persistently haunt blacks- spring, and it offers an unprecedented statement of (continued on page 46)

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